• Journal of Arbitration Studies
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• v.27 no.4
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• pp.61-72
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• 2017

In this study, the Commission proposed the mitigation of remedies by improving the role of medical disputes and preventing medical disputes. Medical disputes include a comprehensive description of medical malpractice, medical negligence, medical malpractice, and medical malpractice. Medical negligence refers to the neglect of medical care due to careless medical care in the treatment of patients, leading to patient injury and death. An inappropriate response in the process of international treatment could result in international trials and a decline in international credibility. In cases where medical disputes arise, health care is strictly necessary to determine the truth or absence of medical malpractice, and these expertise and experience are usually provided by emotion. With the neutral and objective emotions provided fairly and impartially, medical care expertise and experience can be fair, and the medical disputes can be resolved peacefully if the parties are trustworthy. The Health Care Dispute Mediation Committee should focus on enhancing the professionalism, objectivity, and reliability of medical care.

• Journal of Arbitration Studies
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• v.18 no.3
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• pp.71-89
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• 2008

International technology transfer(ITT) or technology trade is a very comprehensive term covering various mechanisms and channels for shifting technologies across borders. Thus, it refers to numerous complex processes, ranging from innovation and international marketing of technology to its absorption and imitation. It includes technology, trade, and investment. Markets for exchanging technologies are inherently subject to failure due to appropriability problems, spillovers, asymmetric information, and market power. Thus, there is strong justification for public intervention. Technology developers are interested in reducing the costs and uncertainty of making transfers, along with protecting their rights to profit from such transfers. On the other hand, technology importers are interested in acquiring knowledge at minimal costs, asking for restricting sharply the exclusive rights of foreign firms to exploit technology. The purpose of this paper is to review the characteristics, risks, legal issues and contractual check points of ITT, focusing on the avoidance of commercial disputes during the very complex processes of ITT.

• International Commerce and Information Review
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• v.8 no.3
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• pp.207-227
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• 2006

An Arbitration agreement is one kind of contracts between two or more contracting parties; any possible disputes that arise concerning a contract will be settled by arbitration. The parties are free to agree on the number of arbitrators. The role of the arbitrator is so significant in the arbitration system that its success or failure may depend on the credibility of the arbitrator. The purpose of this paper is to examine the specific elements of the Arbitration Clause through arbitration laws, arbitration rules and the related cases, to introduce the standard clause which are recommended by the international institution and the individual countries, and to make the parties of international commercial contracts reflect them in their contracts. Thus this author would like to recommend the famous and well known the Standard Clause which were drafted by international institution such as ICC and UNCITRAL or individual countries.(LCIA, AAA, CIETAC, KCAB)

• Journal of Arbitration Studies
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• v.23 no.1
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• pp.133-152
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• 2013

Recently, the United Nations Commission on International Trade Law (UNCITRAL) has made progress toward resolving low value, high volume disputes in international e-commerce. At the Working Group's 26th session, two draft procedural rules were addressed. The first discussed the draft of Article 9, entitled "Decision by a neutral party." This is based on the suggestion in 26th session to have a "two track" system of ODR, one including negotiation, facilitated settlement, and arbitration phrases, and the other not including an arbitration phase. The second draft procedural rule, draft Article 10, regards the language of proceedings. In most cases of international e-commerce, the decision of language of an ODR proceeding is a matter of importance, for the language parties could differ from each other. This paper examines several implications of UNCITRAL for Korea, which has unstable ODR system.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.89-120
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• 2006

If the existence and effect of the arbitration agreement becomes an issue in international business transactions, it is the key point how we shall determine the applicable law by national rules for the conflict of laws, or by other methods. The argument in determination of the applicable law to the existence and effect of the arbitration agreement is related to regal nature of the arbitration agreement. As there are foreign factors in international arbitration, therefore we must consider such an aspect. Besides, we have to examine whether the general theory of contract is universally applicable to the arbitration agreement. Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the arbitration agreement. However, it is a difficult problem to recognize the applicable law chosen by the parties, whether it is based on any regal standard(for example New York Convention or the private international law or the essential quality of the arbitration agreement). In the light of the actual transactions, when the parties don't make a choice of the applicable law expressly, it will finally come down to presuming the party's implied intent. Nevertheless, finding the implied intent is a difficult problem. Some argue that we shall presume the choice of applicable law by an objective standard such as a place of arbitration, to prevent too much expansion of the scope of the recognition. But we need to review that this interpretation harmonizes with the principle of party autonomy. Especially, if we desire to detect the vital point where it is most closely linked to the arbitration agreement, we have to inquire how we will decide such a relation by means of any standard. However, as the existing Arbitration Act doesn't offer the solution to these issues, therefore we have to settle these problems through the development of adjudications and theories.

• Journal of Arbitration Studies
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• v.26 no.2
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• pp.67-89
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• 2016

An ADR arbitration system has a necessary value in the sports industry for settlement of disputes. Sports disputes should be resolved independently by enacting internal regulations within the basic principles of national law rather than treated as a civil action. If the dispute is not fair and transparent, it may cause distrust. Because an arbitration system has values such as speed, flexibility of economic decisions, professionalism of arbitrator and confidentiality of arbitration-related information, the efficiency of the arbitration system for conflict resolution has emerged recently. We have to assign sports experts to reactivate sports arbitration commission committees which existed from 2006 to 2009 in Korea. Many countries, such as the UK, USA, Canada, New Zealand, Hungary, the Netherlands, Poland, Germany, and Japan, which attain advancement of sports and the International Court of Arbitration establish and run their own sports arbitration agencies. However, Korea disbanded its sports arbitration commission committee for political and economic reasons. In 2012, after their disbanding, athlete Kim Yeon-kyoung came into conflict with Heungkuk Life over terms of free agent acquisition and international transfer certification. Finally they were able to settle those political conflicts. However if there had been related laws in Korea, they could have resolved those problems easily without international disputes. Practically, it would have been almost impossible for Kim Yeon-kyoung to win the dispute. But her problem became an issue after the London Olympics, so she could win. Although it is well for her to take an active role on the international stage, it left much to be desired on account of the intervention of political circles in order to resolve the conflict. If the sports arbitration commission committee in Korea had still been active, it could have come to a peaceful settlement domestically. Therefore we have to reestablish a Korean sports arbitration committee centered around experts of sports law.

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.149-171
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• 2008

The purpose of this paper is to examine the Measures against Risks in International Investment Agreement: focusing on Umbrella Clause and MIGA. Umbrella Clauses have become a regular feature of international investment agreements and have been included to provide additional protection to investors by covering the contractual obligations in investment agreements between host countries and foreign investors. The meaning of umbrella clauses is one of the most controversial issues with which international arbitral tribunals have been recently confronted with while adjudicating investment disputes brought before them MIGA issues guarantees against non-commercial risks for investments, such as: currency transfer restrictions, expropriations, war and civil disturbances and breach of contract by host governments, and the case that the investor obtains an arbitration award or judical decision for damages and is unable to enforce it after a specified period. Furthermore, MIGA undertakes a wide range of mediation activities designed to remove obstacles to the flow of foreign direct investment in its developing member countries.

• Journal of Arbitration Studies
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• v.22 no.2
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• pp.159-176
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• 2012

The Korean Commercial Arbitration Board (KCAB) recently revised its International Arbitration Rules in a way that reflects its efforts to advance its procedures, leading directly to improved competitiveness as an arbitration institute. Apart from certain limitations, the KCAB's international arbitration rule revision introduced several new arbitration mechanisms, including fast-track arbitration and an empowered administrative office. The International Chamber of Commerce (ICC) released a revised set of arbitration rules (ICC Arbitration Rules), which have been said to be probably the most consulted-on arbitration rules ever. Even though the changes codify existing ICC court practice and add to the 1998 rules only provisions felt necessary in light of input from the users of arbitration, some of the changes will have huge implications for future aspects of arbitration mechanisms, especially those of KCAB. Although it remains to be seen what impact the ICC Arbitration Rules will have in practice, the new rules have been well received by the arbitration community and represent a modern set of provisions consistent with the current needs of the users of international arbitration. That is why, here in the Korean arbitration environment, further research is needed on the possibilities of introducing several elements of the revised ICC Arbitration Rules to improve the speed and cost efficiency of international arbitration.

• 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.9 no.1
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• pp.115-137
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• 1999

The UNCITRAL, during its thirty-two session in 1999 discussed certain issues and problems identified in interactional commercial arbitration practice. The issues discussed include certain aspects if conciliation proceedings ; the legislative requirement of a written form for the arbitration agreement ; arbitability ; soverign immunity ; consolidation of more than one case into one arbitral proceedings ; confidentiality of information in arbitral proceedings ; rasing claims in arbitral proceedings for the purpose of set-off ; decisions by "turncated" arbitral tribunals liability of arbitrators ; power by the arbitral tribunal to award interest ; costs of arbitral proceedings ; enforceability of interim measures of protection ; and discretion to enforce an award that has been set aside in the state of origin. Among those issues discussed, most of States agreed that the issues relating to certain aspects of conciliation proceedings ; the legislative requirement of a written form for the arbitration agreement ; enforceability of interim measures of protection ; and discretion to enforce an award that has been set aside in the State of origin should have priority over other issues. The UNCITRAL may wish to consider the desirability of preparing uniform provisions on any of those issues, possibly indicating whether further work should be towards a legislative text (such as a model legislative provision or a treaty) or a non-legislative text (such as a model contractual rule).