• Journal of Arbitration Studies
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• v.18 no.1
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• pp.97-119
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• 2008

The reluctance of Latin American countries to practice international arbitration is not a new topic in international law. This reluctance historically based on Calvo Doctrine provoked not only the absence of Latin American countries from the major international commercial arbitration conventions, but obsolete national arbitration legislation. Recently, however, these countries have undertaken major steps showing that the region is no longer reluctant to practice international commercial arbitration. Most Latin American countries have ratified the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"), the 1965 Convention on the Settlement of Investment Disputes ("Washington Convention") and the 1975 Inter-American Convention on International Commercial Arbitration ("Panama Convention"). The majority of Latin American countries have also modified and adapted their national legislation on arbitration to the UNCITRAL model law. Even judiciary has been following this pro-arbitration. This article will focus on some of these factors provoking the acceptance of international commercial arbitration in Latin America to trace the common trends and characteristics in an attempt to understand better how international arbitration set on its place firmly. For this purpose we selected five countries, Brazil, Argentina, Chile, Mexico and Venezuela, to analyse legislations and jurisprudence. Latin America is ready to challenge any obstacles to promote arbitration as alternative methods of judicial resolution. There is an ever-increasing number of international arbitration in Latin America. Both practitioners and judiciary have shown desires to promote the resolution of disputes by arbitration and used the legal instruments to ensure that process interpreting and applying legislations for pro-arbitration. Even there remains Calvo Doctrine's culture in Latin America still now, it should be certain this culture will disappear from the conduct of international arbitration.

• Journal of Arbitration Studies
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• v.33 no.2
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• pp.53-83
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• 2023

The investment agreement prepared at the beginning of inter-Korean economic cooperation in 2000 can be evaluated as very ineffective as a product of mutual political and diplomatic compromise rather than an effective protection for our investment assets. South Korean companies suffered a lot of losses due to the freezing of assets in the Geumgang mountain district and the closure of the Kaeseung Industrial Complex, but they did not receive practical damage relief due to institutional vulnerabilities. Currently, North Korea is under international economic sanctions of the UN Security Council, so it is true that the resumption of inter-Korean economic cooperation is far away, but North Korea's human resources and geographical location are still attractive investment destinations for us. Therefore, if strained relations between the two Koreas recover in the future and international economic sanctions on North Korea are eased, Korean companies' investment in North Korea will resume. However, the previous inter-Korean investment agreement system was a fictional systemthat was ineffective. Therefore, if these safety devices are not reorganized when economic cooperation resumes, unfair damage to Korean companies will be repeated again. The core of the improved investment guarantee system is not a bilateral system between the two Koreas, but the establishment of a multilateral system through North Korea's inclusion in the international economy. Specifically, it includes encouraging North Korea to join international agreements for the execution of arbitration decisions, securing subrogation rights through membership of international insurance groups such as MIGA, creating matching funds by international financial organizations. Through this new approach, it will be possible to improve the safety of Korean companies' investment in North Korea, and ultimately, it will be necessary to lay the foundation for mutual development through economic cooperation between the two Koreas.

• Journal of Arbitration Studies
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• v.26 no.2
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• pp.115-134
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• 2016

Arbitration is a consensual process in which a dispute is resolved by an impartial arbitrator outside the courts. Arbitration is flexible, neutral, time- and cost-efficient, and confidential. In 1985, the United Nations Commission on International Trade Law(UNCITRAL) enacted the UNCITRAL Model Law on International Commercial Arbitration to help countries reform and modernize their arbitration laws. In 1999, South Korea adopted the model law. Later in 2006, UNCITRAL amended the model law to promote international arbitration. The amended model law includes, among other things, specific provisions regarding interim measures. In 2016, in order to adopt the newly amended version of the model law, South Korea revised its Arbitration Act. The revised act includes a more comprehensive legal regime regarding interim measures, including definitions, types, processes, requirements, the court's recognition and enforcement, and liability. This paper examines the revision of the Arbitration Act of Korea and its legislative intent, presents the problems, and offers recommendations for resolving the problems.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.211-234
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• 2004

When there is a dispute in international commercial contracts, the arbitration system, which is an ADR system, is often utilized. The Arbitration system can only be put to use when there is an arbitration agreement between the parties concerned, but even in this case, the one party of the contract tries to avoid the braking of the arbitration. In this case, separability doctrine and Kompetenz-Kompetenz doctrine can be used for the smooth operation of the Arbitration system. This paper reviews these two doctrines, taking a close look at UNCITRAL, ICC, America's FAA and case examples, and France's system and its case examples. U.S. has adopted separability doctrine for the Prima paint case but not the Kompetenz-Kompetenz doctrine. English has adopted separability doctrine for the Heyman case but not the Kompetenz-Kompetenz doctrine. However in France, both doctrines are adopted. France, which accords international arbitration the most highly favorable status of the three nations, has developed the legal framework that best promotes the public policy goal of encouraging the use of arbitration agreements in international commerce. In Korea, the above doctrines are prescribed in Article 17 of the arbitration law, as prescribed by the UNCITRAL Model law. However it takes the form of German laws. The adoption of the French system would have been wiser considering the promotion of the arbitration system.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.51-88
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• 2006

The obligation on a national court to recognize and enforce arbitral awards as provided in Article III New York Convention, which both Korea and China have ratified, is subject to limited exceptions. Recognition and enforcement will be refused only if the party against whom enforcement is sought can show that one of the exclusive grounds for refusal enumerated in Article V(1) New York Convention has occurred. The court may also refuse enforcement ex officio if the award violates that state's public policy. This article explores the circumstances where arbitral awards may be refused enforcement under the Korean and Chinese arbitration laws. It first analyzes the relevant statutory provisions. In Korea and China, which have adopted the UNCITRAL Model law, the grounds of challenge are exhaustively defined within their respective arbitration laws. According to their arbitration laws, an arbitral award may be set aside if a party making the application proves that (i) a party to the arbitration agreement was under some incapacity or the agreement is not valid under the applicable law, (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case, (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration, or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. An arbitral award may also be set aside ex officio by the court if the court finds that (i) the subject-matter of the dispute is not capable of settlement by arbitration under the applicable law or (ii) the award is in conflict with the public policy. This article then reviews relevant judicial decisions rendered in Korea and China to see how the courts in these countries have been interpreting the provisions specifying the grounds for challenging arbitral awards. It concludes that the courts in Korea and China rarely accept challenges to arbitral awards, thereby respecting the mandate of the New York Convention.

• Journal of Arbitration Studies
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• v.32 no.2
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• pp.3-30
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• 2022

On 27 October the Supreme Court of UK handed down its much anticipated decision in Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48. The issues for the Supreme Court to decide were as follows: (1) which law governed the validity of the arbitration agreement; (2) if English law applied, whether, as a matter of English law, there was any real prospect that a court might find that KFG became a party to the arbitration agreement, and (3) whether, procedurally, the Court of Appeal was correct in giving summary judgment refusing recognition and enforcement the award, or whether there should have been a full rehearing of whether there was a valid and binding arbitration agreement for the purposes of the New York Convention and the AA 1996 (the 'procedural' issue) The decision in Kabab-Ji provides further reassuring clarity on how the governing law of the arbitration agreement is to be determined under English law where the governing law is not expressly stated in the arbitration agreement itself. The Supreme Court's reasoning is consistent with its earlier decision on the same issue, albeit in the context of enforcement pursuant to the New York Convention, rather than considering the arbitration agreement before an award is rendered. This paper presents some implications of Kabab-Ji case. Also, it seeks to provide a meaningful discussion and theories on the arbitration system in Korea.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.183-213
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• 2011

China and North America have been South Korea's biggest trading partner long time. As the volume of trade has been increasing, the disputes between Korean companies and Chinese Companies and between Korean companies and North American Companies have been increasing. If these disputes are settled by Arbitration, the parties appoint arbitrators who are empowered to proceed the arbitration procedure and have a power to render an arbitral award. Accordingly, it is very important for the parties to select who is an arbitrators in Arbitration. But if the parties doubt their arbitrator(s)'s fairness and independency, they can discharge them in accordance to law and arbitration institute's rules. In comparison with arbitrator system for way of selection and discharge among Korea, China and North America, some differences are found. First, if parties fail to appoint co-arbitrators or the presiding arbitrator by a mutual agreement, the court has the right to appoint them or him in Korea and North America whereas the Chairman of CIETAC choose him in China. Second, the authority to decide whether arbitrator is discharged owing to his fairness and independency, depends on arbitration institute and court in Korea and North American whereas it depends on the Chairman of CIETAC only.

• Korea Trade Review
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• v.41 no.5
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• pp.15-39
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• 2016

Over the past couple of decades, we can see the emergence of a new lex mercatoria. It consists of international conventions or treaty, model laws and international principles. And such new lex mercatoria is driven by the international institutions such as UNCITRAL, UNIDROIT and ICC. The international convention and international principles in the field of international commercial transaction are considered : UN Convention on Contracts for the International Sale of Goods(CISG) and The UNIDROIT Principles(PICC Principles). The former is the statue law for the latter, and the latter sometimes supports the former as an interpretation and supplementation of CISG. So, the purpose of this article is to evaluate and investigate the current status of CISG and PICC Principles in terms of application and interpretation principles. The results are as follows. First, PICC are used for the interpretation and supplementation of international law such as CISG, but CISG is a law, not a rule. Second, CISG and PICC Principles are not often chosen when parties chose the law governing their contract. The parties very often chose a national law ; the number of the parties choosing CISG and PICC Principles as a governing law was very low.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.99-124
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• 2013

International commercial arbitration is a specially formed mechanism for the final and binding settlement of disputes arisen between contracting parties regarding procedures, structures or other contractual relationship agreed by them. It is a resolution system which is processed autonomously by arbitrators who are appointed by contracting parties without involving the national court. If the contracting parties want to settle their disputes by arbitration, there must be a valid agreement. With a valid agreement, the most important concern is which law(called as the substantive law) should be applied in order to determine the rights and obligations of both contracting parties in relation to the dispute. At this point, the substantive law is really important because it is applied to the dispute itself directly during proceedings as well as it plays an crucial role in scrutiny and enforcement of arbitral awards. This article discusses about the substantive law under international commercial arbitration, specially focusing on the regulations of the ICC rules of arbitration, which is the most widely used all over the world and UNCITRAL Model law, which most countries' rule and laws are based on. By discussing how these rules and regulations should be interpreted and applied, it is expected to provide practical help to practitioners when they agree on an arbitration agreement.

• International Commerce and Information Review
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• v.14 no.3
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• pp.453-479
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• 2012

The increase in international trade is clearly reflected by litigation and arbitration. Despite the importance of international commercial transaction, until very recently little was known about how the law interacts with actual practice. The CISG obviously plays an important role, but we are concerned with using choice of law to resolve issue that the CISG leaves unresolved. The case law UPICC is now accessible by means of UNILEX, the database on international case law that focus on CISG cases. The courts and arbitration tribunals throughout the world are developing a growing body of international case law on issues not resolved by the CISG, though arising from transactions to which the CISG applies. The application of the CISG is obligatory due to its nature as hard law an international convention. However, UPICC are only restatements and more flexibility, comprehensive instrument than CISG. This article offers to promote the UPICC application from their present status as a mere soft law instrument through analysing UNILEX cases.