• Journal of Arbitration Studies
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• v.26 no.1
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• pp.73-87
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• 2016

Activation Plan for International Health Care through the Resolution of Medical Disputes with Foreign Patients. The field of international health care is currently being expanded and developed into the new industrial field of medical tourism through the convergence of medicine - a public sector - and tourism - a private sector. This study examines problems with medical law regarding the prevention of medical disputes that may occur when attracting foreign patients and the resolution of these disputes. It also introduces the current most ideal resolution plan for medical disputes. Advanced measures for the prevention of medical disputes with foreign patients are as follows: First, when conducting international health care, the obligation to explain a medical treatment should be applied at higher standards for foreign patients. Second, all medical treatment procedures, including appointments, treatments, discharge, post-operation consultations, and follow-up treatments of foreign patients should be charted and recorded. A checklist regarding precautions for each procedure along with a response manual for problems should also be established. These regulations can prevent unexpected conflicts in advance when medical disputes occur. If a medical dispute with a foreign patient occurs despite thorough advance prevention, it can be resolved through reconciliation, mediation, and arbitration. The government and the medical field along with its related industries and authorities should put their efforts into developing these priori/posteriori measures for the activation of international medical health care. The laws and technological/human capabilities in medicine should also be improved in order to activate international medical health care.

• Journal of Arbitration Studies
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• v.16 no.3
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• pp.53-89
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• 2006

At its thirty-second session(Vienna, 17 May-4 June 1999), the UNCITRAL decided that the priority items for the Working Group(Arbitration and Conciliation) should include enforceability of interim measures and the requirement of written (on for the arbitration agreement. The Working Group, at its forty-third session(Vienna, 3-7 October 2005), it had undertaken a detailed review of the text of the revised article 17 of UNCTTRAL Model Law on International Commercial Arbitration, and it had resumed discussions on a draft model legislative provision revising article 7, paragraph (2) of UNCITRAL Model Law. The purpose of this paper is to make research on the contents and issues of the draft legislative provisions on interim measures and preliminary orders, and on the form of arbitration agreement which the Working Group discussed and adopted at its forth-fourth session(New York, 23-27 January 2006). The draft legislative provisions on interim measures and preliminary orders are composed of the following provisions : Article 17-power of arbitral tribunal to order interim measures; article 17 bis-conditions for granting interim measures; article 17 ter-applications for preliminary orders and conditions for granting preliminary orders; article 17 quater-specific regime for preliminary orders; article 17 quinquies- modification, suspension, termination; article 17 sexies-provision of security; article 17 septies-disclosure; article 17 octies-costs and damages; article 17 novies recognition and enforcements; article 17 decies-grounds for refusing recognition or enforcement; article 17 undecies-court-ordered interim measures. There are the following issues in the draft legislative provisions on interim measures and preliminary orders : form of issuance of an interim measures in article 17(2); conditions for granting interim measures in article 17 bis; purpose, function and legal regime of preliminary orders in article 17 ter; obligation of arbitral tribunal to give notice, and non-enforceability of preliminary orders in article 17 quater; burden of proof, interplay between article 17 decies and article 34, and decision on the recognition and enforcement of the interim measures in article 17 decies; placement of article 17 undecies; amendment of scope exception of application in article 1(2). The draft legislative provisions on the form of arbitration agreement are composed of the following provisions : article 7(1) definition of arbitration agreement; article 7(2) arbitration agreement in writing; article 7(3) arbitration agreement if its terms(content) are (is) recorded in any form; article 7(4) arbitration agreement by an electronic communication; article 7(5) arbitration agreement in an exchange of statements of claim and defence; article 7(6) reference to any document containing an arbitration clause. There are the following issues in the draft legislative provisions on the form of arbitration agreement : arbitration agreement in writing in article 7(2); terms or contents of arbitration agreement in article 7(3); arbitration agreement by electronic communication in article 7(4); existence of arbitration agreement in article 7(5); reference to any document containing an arbitration clause in article 7(6); the alternative proposal on article 7; amendment to article 35(2).

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.199-241
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• 2004

This paper discusses to what extent the party autonomy can be allowed in intellectual property dispute resolution agreements in determination of governing law, international jurisdiction, and ADR agreement for arbitration, etc. in considering of the territoriality principle of IP. The party autonomy in choice of governing law and jurisdiction can be fully enjoyed in IP contract disputes. However, the freedom of choice is limited to the disputes regarding IF infringement disputes. The party autonomy is denied in the issues of determination of validity of patent or other IP rights. The author seeks the possibility to allow as much freedom in making choice of applicable law or jurisdiction, or entering into arbitration agreement.

• Journal of Arbitration Studies
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• v.27 no.4
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• pp.157-177
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• 2017

World Trade Organization(WTO) has 164 members since it has established on 1995. It plays a significant role in solving the world trade disputes. The process of the dispute settlement mechanism includes five steps: Negotiation, Establishment of experts group, Deliberation of appellate body, Execution and Supervision of Verdict and the Sanctions for Default. It suggested that the higher rate of developed countries using mechanism to solving the disputes than developing countries solving disputes by mechanism through the analysis of dispute of WTO members. Meanwhile, the more powerful economic entity is, the more trade dispute will be. There are several problems of mechanism by analysis the recently famous cases of trade disputes: Overburden of experts panel, Low utilization rate of the mechanism of developing countries, Lack of economic competition policy and labor standard terms and Unfulfillment of retaliatory measures of developing countries towards developed countries. This paper propose proper solutions and advises to improve mechanism of WTO dispute settlement.

• Journal of Arbitration Studies
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• v.22 no.3
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• pp.165-185
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• 2012

Franchising has proved over many years to be a successful commercial vehicle for the international distribution of products and services. However, there has long been missing a user-friendly model contract that would reflect the diversity of international franchising contracts. Because the ICC has drafted a model form of international franchising contracts, taking into account the most commonly encountered clauses in franchising agreements, their model could be used as a checklist of the core obligations of a cross-border franchise contract. Because there is no internationally agreed-upon uniform legislation on franchising, parties must rely on national laws and regulations applicable to the international franchise (when such laws and regulations exist) and should therefore very carefully draft stipulations for the legal status of the contract. This study has been intended to cite some provisions for striking a fair balance between the interests of the franchisor and those of the franchisee and for avoiding unfair trade acts in international franchising contracts.

• International Commerce and Information Review
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• v.7 no.1
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• pp.197-211
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• 2005

본 논문에서는 상거래과정에서 발생하는 분쟁해결을 위하여 적용가능한 ODR시스템의 특성과 선진국의 ODR의 시험 운영사례를 통하여 이에 따른 문제점을 분석하였다. 또한 국제상거래의 분쟁해결수단으로 일반화되고 있는 중재에 대하여 온라인중재의 도입에 따른 법적인 문제를 검토하고, 이러한 분석 검토결과를 토대로 ODR의 발전방안을 제시하였다. ODR은 신속성, 비용의 경제성, 해결방법의 개선 등의 장점으로 인하여 온라인에서 발생한 분쟁뿐만 아니라 오프라인에서 발생한 분쟁까지도 그 영역이 확대되어 가고 있으며, 앞으로 전자정부에서도 이를 채택하게 됨에 따라 급격히 발전할 것으로 생각된다. 최근의 상거래분쟁이 복잡하고 전문성이 요구되며, 신속한 해결을 지향하고 있으므로 종래 ADR제도의 장점과 정보 통신적 요소를 가미한 새로운 ODR제도를 도입 추진하는 것이 무엇보다도 중요하다고 할 수 있으며, 이를 위하여 ODR제도의 정통성과 실효성을 확보할 필요가 있다.

• Journal of Arbitration Studies
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• v.29 no.2
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• pp.201-223
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• 2019

There are diverse kinds of alternative dispute resolution systems in India. In the structure of society in Ancient India, the panchayat system was the creation of the villagers themselves and was composed of persons who were generally respected and to whose decisions the villagers were accustomed to give unreserved obedience. The ruler of the province allowed the villagers to govern themselves and the villagers assumed the responsibility for the settlement of disputes among themselves. However, the panchayat system has been heavily influenced by the structure of the village at hand, which depends on the caste system in India. This study categorizes the village dispute resolution structure into four main types depending on the extent of the caste group's dominance within the village. In addition, the Indian government created Lok Adalat which combines the indigenous dispute resolution with modern law system. Today, Lok Adalat is one of the widely used dispute resolution systems in India.

• Journal of Arbitration Studies
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• v.20 no.3
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• pp.3-24
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• 2010

In the approaching 21th century, the outstanding development in international trade and commerce has established arbitration as the preferred form of dispute resolution on international business transaction. Because the form of commercial dispute becomes more complicated and varied with the quantitative increase of them, the reasonable and rapid settlement of them must be the important problem simultaneously. In this article, the author discusses various issues on the recognition and enforcement of an foreign arbitral awards under Korean Arbitration Act, which is modeled after the Model Law on International Commercial Arbitration of the UNCITRAL of 1985. The Dec. 31, 1999 amendment to the Korean Arbitration Act admits the basis for enforcement of foreign arbitral awards rendered under United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958(commonly known as the New York Convention). Korea has acceded to the New York Convention since 1973. When acceding to the convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of anther Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provision relating to the enforcement of arbitral awards falling under the New York Convention consists of Article III, IV, V. In particular, Article V of the New York Convention enumerates the grounds for refusal of recognition foreign arbitral awards. The grounds are separated into two categories : One that abides by procedures and the others are based on national legal sovereignty. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of awards. Because Korea requires enforcement to be based on a judgement, the result is that arbitral of award holders are forced to institute domestic litigation.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.33-62
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• 2012

Arbitration is an essential methods of settlement for disputes in international commercial transaction. UNCITRAL Arbitration Rules have been in force after adoption in 1976. Over the 30 years, UNCITRAL Arbitration rules have been modeled for domestic and international arbitration institutes for setting and revision on their arbitration rules. UNCITRAL Committee has published the revised Arbitration Rules which entered into force after 15 August 2010. Therefore new version of arbitration rules are substituted for the previous version of UNCITRAL Arbitration Rules 1976 since its enforcement. The revised arbitration rules of UNCITRAL have been changed in various items for convergence with new trends and modern practices on arbitration including information communication and technology. The revision of arbitration rules focused on resolving problems in practice and codifying best practice to enhance the efficiency of arbitration conducted under the rules. There are considerable in a number of important respects on the removing the restricted in writing requirement for information technology, adapting the multiparties arbitration, joinder arbitration, truncated arbitral tribunal and adjustment in terms and condition and construction simply. Also a number of provisions have been refined, varied and clarified with new articles included. Conclusively the new revised arbitration rules fill a number of gaps which became apparent in the UNCITRAL Arbitration Rules 1976 to bring into line with new modern practices of international arbitration rules in international commercial disputes. This paper focus on the study the problems and inspired points on significant revised provisions and its considerable points in arbitration environment. This paper is approaching to the comparisons of UNCITRAL revised Arbitration Rules 2010 with previous Arbitration Rules 1976 of UNCITRAL and International Arbitration Rules 2011 of KCAB.

• Journal of Arbitration Studies
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• v.21 no.2
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• pp.65-83
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• 2011

The purpose of Emergency Arbitrator System is to provide parties with the possibility of obtaining interim measures before constitution of the arbitral tribunal. This paper examines the Emergency Arbitrator System set forth in Article 32 and Appendix II of Arbitration Rules of Stockholm Chamber of Commerce (SCC) in comparison with Article 37 of ICDR International Arbitration Rules. This paper also provides a case study of 4 Decisions rendered by Emergency Arbitrators under the auspices of SCC in 2010. It was found that it took only 4 days on average from the date upon which the request for emergency interim measures was registered to SCC to the decision rendered by Emergency Arbitrators. The figures of average days reflect its rapidity well, one of the most preferred characteristics of arbitration. However, a case study of SCC decisions shows that only one request for interim measures was successfully granted. In other words, it was found that the requirements for granting of interim measures by emergency arbitrator were quite strictly applied. If interim measures is to be granted, it was found that the requesting party should prove to satisfy the requirements for granting of interim measures as follows: First, the requesting party has to demonstrate that it may suffer irreparable or serious harm in commercially-sensible, not in a strictly literal sense unless the interim measure is granted. Second, the party requesting interim measures has to persuade the Emergency Arbitrator that the request was of an urgent nature. Third, the requesting party is required to meet the reasonable possibility that it may succeed on the merits of the claim.