• International Commerce and Information Review
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• v.16 no.5
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• pp.67-86
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• 2014

The commercial arbitration is considered an effective and rapid means in solving problems and finding solutions for disputes between the business partners. For the development of commercial arbitration, there is a need to study arbitration in practice as well as in theory. This paper analyse the situation of commercial arbitration system in Pakistan both with respect to domestic laws and international laws applicable in Pakistan. The Arbitration Bill 2009 aims to consolidate law relating domestic arbitration, international commercial arbitration, recognition and enforcement of foreign arbitral awards as well as settlement of international investment disputes. Pakistan while defending investment claims and in order to restore investor's confidence, in 2011, Pakistan introduced a law to secure foreign investments. This study explains the relationship of old and new Pakistani arbitration laws and elaborates the changes brought about by the new enactments and gives a comprehensive analysis of Pakistani arbitration laws, rules and procedures dealing with arbitration agreements and awards. In the absence of relevant trade information in Pakistan, this paper is designed to meet the needs of a Korean international trade scholars to obtain an understanding of Pakistani commercial arbitration system quickly.

• Proceedings of the Korean Institute Of Construction Engineering and Management
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• 2006.11a
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• pp.301-304
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• 2006

The insistence of rights and interests in contract is being generalized by opening in construction market which is following F.T.A, internationally. Conditions of contract in construction have different specialities compared with other industries. Different conditions of contract should be established because of a specific character that is different from each construction, such as work, environment, circumference conditions. Although the order of Turn-key is being expanded by increasing construction scale and demanding hybrid function, the suitable regulations of contract are not settled. As a result, various factors of claim is occurring in Change Order-Claim, because they just obey a part of guide-line. This study suggests useful solutions in detail concerned with the main factor of Change Order-Claim by each D/B phases through practical sorting and analysis of the causes of Change Order-Claim.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.631-655
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• 2004

This study clearly shows that the commercial dispute management is very important for the enterprise and the national economy and the international commercial arbitration as a ADR needs to be activated to settle the trade dispute for the more in the Republic of Korea. The trade dispute has increased for more than thirty years from 1960s and the problem of the occurrence of trade dispute has been very serious in the Republic of Korea. In general, the annual average increase rate of trade dispute has been higher gradually to present and has been high more than the annual average increase rate of export from the 1960s. Also the annual average increase rate of trade dispute in R.O.K. in general high than the Japan and the Taiwan. Accordingly, the trade dispute has been the factor of weakening of international competitiveness. On the other hand, the occurrence of commercial dispute is apt to affect the enterprise and the national economy. It can be called as micro and macro effect. Also, it's analysed that all these problems occurred because of business quality of businessman than the quality problem of goods. Several improvements directions recommended are as follows according to the analyses above. The first, it's required that the consciousness level of commercial dispute management of businessman should be higher to prevent occurrence of commercial dispute and settle the dispute efficiently. The second, the government concerned had better fix policy to raise the standard of commercial dispute management since the trade dispute affects the enterprise and the national economy. And ADR institutions such as the KCAB cooperate with each other for the activation of ADR such as conciliation. The third, is's desirable that the KCAB should promote international commercial arbitration and activate the cooperation of international arbitration activity with other countries. The fourth, it's desirable that the system of Certified Dispute Manager(CDM) should be established to raise the standard of commercial dispute management and the trade order.

• Journal of Arbitration Studies
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• v.23 no.2
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• pp.81-113
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• 2013

The World Trade Organization (WTO) offers remedies for non-compliance by the introduction of compensation or retaliation in the Dispute Settlement Understanding (DSU). There are no the provisions under the WTO DSU and it seems unclear what retaliation is attempting to achieve. Therefore, it is unclear whether the goal of WTO retaliation is to induce compliance or to restore the balance between the rights and the obligations of WTO members. It has been claimed the WTO has a strong dispute settlement system by providing retaliation when the recommendations and rulings of Dispute Settlement Body (DSB) are not complied with. But this seems to be inadequate to bring about effective and timely compliance. Especially there is a problem with free riding by a violating member because the level of retaliation is determined from the expiration of a reasonable period of time, providing an incentive to delay compliance. Also the level of the suspension of concessions or other obligations authorized by the DSB is equivalent to the level of nullification or impairment, according to DSU Article 22.4. However, if the member concerned objections to the level of the suspension proposed, the matter shall be referred to arbitration. The arbitrator shall not examine the nature of the suspension of concessions or other obligations to be suspended but shall determine whether the level of such suspension is equivalent to the nullification or impairment. The arbitrator makes an assessment standard of equivalence by comparing the suspension of concessions or other obligations and the nullification or impairment calculated in terms of the amount of trade. But it is necessary that other standards replace the quantitative standards when the level of the nullification or impairment cannot be quantified by concrete damages.

• Journal of Arbitration Studies
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• v.31 no.1
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• pp.155-171
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• 2021

Recently, the e-business market has become a place of convergence where consumers and suppliers communicate with each other, and a new method of trading of funds has emerged in the process. Crowd-funding is one of the types of money transactions that have emerged in the online space, and its interest and trading volume have been growing rapidly recently. The platform in the online space using crowd-funding method operates in the form of online telecommunication sales, and it is in the form of producing and delivering products based on funds obtained from potential consumers by the operators involved in securing funds. However, if the participating business operators do not deliver the product or deliver the product other than the promoted product and avoid responsibility, the potential demander will not be compensated without mediation by the platform operating entity. In this study, despite the rapid growth in the market size of crowd-funding, consumers who participated in the funding are protected and able to resolve disputes in the event of a conflict amid growing complaints from potential consumers and side effects. The structure or method of crowd-funding is a new form of trading that has different features from conventional e-commerce. Therefore, the legal basis is not yet in place and the standards need to be laid out through various and sufficient discussions politically, legally, socially and culturally and economically. As the potential market and positive effects of crowd-funding around the world have been recognized, a role is required as an ecosystem for new financial transactions. And the potential market could be realized as a new industry if the right legal system and policy consultation were made.

• Journal of Arbitration Studies
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• v.28 no.4
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• pp.153-172
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• 2018

In solving international commercial disputes, arbitration has a unique advantage. Therefore, when most parties sign a charter party, they contain arbitration clauses. Whether the arbitration clause in the charter party can be effectively incorporated into the bill of lading and bind to the third party-bill holder becomes an important issue. Based on the problem above, this paper compares the arbitration system between Korea and China, and discusses the composition of the Chinese Maritime Court and the Chinese court's adjudication of arbitration for foreign countries, which are recognized and enforced in China. What is most important in this study is observing the Chinese case from the beginning of 2000 to the present in order to rule whether the Chinese court can effectively incorporate the arbitration clause in the charter party into the bill of lading, as well as whether it constitutes an effective binding force for third parties and changes in standard of recognition. Finally, through comparative analysis, the study concludes that in China, the arbitration clause in the charter party can be effectively incorporated into the bill of lading, and that the conditions for the third parties can be effectively restrained. There must be several points to be noted when recording the bill of lading. This would then help reduce the legal risks and promote the sustainable development of international transactions.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.45
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• pp.51-82
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• 2010

The "rules of private international law" or "conflict of law rules" work to determine the governing law, the law applicable to international contracts. These rules permit parties' autonomy to choose the law applicable to their contracts in cases of both litigations and arbitrations. In this regards, the present article examines parties' five options for the choice of the law governing their contracts, which the parties should consider when negotiating and drafting an international agreement. This means that parties in international contracting should check the contents of the law that they are to choose as the governing law before doing so. The first option is to submit the contract to its own law, which can be the safest and simplest solution generally. However this option is subject to the consent of the other party, and is not appropriate when the domestic law chosen contains mandatory rules strongly protecting the other party. Secondly, the option of choosing the other party's law is not preferable in general. Even though the other party is strong enough to succeed in insisting on applying its own law, the other party is advised to counter-offer a neutral solution by suggesting the application of a transnational set of rules and principles of international contract, such as Unidroit Principles. The third option to choose the law of a third country should be taken with the caution that it should be harmonized with either, in case of litigations, the international jurisdiction clause which makes the country chosen have the jurisdiction over the dispute arising under the contract, or, in case of arbitrations, the way of selection of the arbitrator who has good knowledge of the law chosen. The fourth option of submitting the contract to the lex mercatoria or the general principles of law including the Unidroit Principles can be a advisable solution when a dispute is designed to be submitted to experienced arbitrators. The final and fifth is to be silent on the choice of the governing law in contracting. This option can be usefully available by experienced negotiators who are well familiar with the conflict of laws rules and enables the parties to avoid the difficulties to agree on the governing law issue and leave it open until a dispute arises.

• Journal of Arbitration Studies
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• v.15 no.2
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• pp.93-123
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• 2005

As the international commercial transaction has drastically grown up with the mainland China, commercial disputes that are required to settle through ADR have tremendously increased during the last decade. Since China has not been fully exposed to the Free World for a long period of time, there would have been a great amount of misunderstanding about their competency and integrity to deal with internationally oriented commercial transactions with a view to internationally acceptable manner. This arbitration case was related to the contract in dispute of C&A Inc. as the importer v. China XX Importation Co. as the exporter for the sale of Silicon Metal. But after the contract were formed, exporter(respondent) declined to deliver the goods under the contracts because the market price of Silicon Metal increased according to the argument of the importer(claimant). Importer had to purchase alternative goods from other companies to substitute for the goods subject to the contracts in dispute. Importer purchased silicon metal of the same quality as under the contracts from two other Chinese companies as the necessary measure to mitigate the loss, paying prices higher than the contract price. Since exporter had breached the contracts, importer's loss should be compensated by the exporter as the Arbitration Tribunal decided for supporting importer's claim of loss for the substitute goods. This study is aiming at analyzing the rationale of the arbitral awards made by the Shanghai Commission in terms of (l)Place of Arbitration, (2)Applicable Law, (3)Validity of the Contracts, (4)Doctrine of Frustration, (5)Responsibility for the Mitigation of Damage by the Importer.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.68
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• pp.89-121
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• 2015

Investor-State Dispute Settlement(ISDS) grants a foreign investor the right to access an international arbitrator, if he believes actions taken by a host government are in breach of commitments made in an investment agreement or an investment treaty. The arbitration procedure of ICSID is made specifically to resolve investment disputes, so most of investment disputes have been settled in accordance with the procedure. Owing to limitation of dispute settlements through the ICSID arbitration procedure, several investment dispute conciliation schemes have been emerged as alternatives. In the case of a conciliation, the conciliation procedure will be in progress based on arbitrary agreement between parties, and if both parties agree on a conciliation program, then the arbitrary execution rate is relatively higher than that of arbitration procedures. In addition, it is evaluated that the time duration of conducting a conciliation procedure is in general rather short in 8 to 24months, and its incumbent cost is also rather inexpensive. Most of all, through amicable settlement of a dispute between a foreign investor and a host state, the foreign investor may continue his investment activities without a hitch, while the host state may invite more investment without any risk of losing its external credibility. In conclusion, it is desirable to lead any investment dispute between a foreign investor and a host state settle in accordance with the dispute settlement procedure as specified in the relevant investment agreement. In addition, to make the foreign investor continue his investment activities, it will be necessary to provide a separate investment dispute conciliation system aside from such arbitration procedures to cope any unexpected incident flexibly.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.22
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• pp.255-285
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• 2004

After more than 15 years of negotiations, China was finally able to achieve the WTO membership, opening up new trade opportunities for China as well as existing WTO members. China accepted a special safeguard mechanism as one of its WTO- plus commitments. And in response, Korea has since introduced China special safeguard rules, which in simple terms, allows an invocation of safeguard measures against Chinese product imports under more lapse conditions than would normally be allowed under the existing general safeguard rules. China also introduced new safeguard rules in November 2001 in an effort to increase transparency in its operation of safeguard measures. However, the current article contends that the new rules pose a serious threat to free trade in the form of the retaliation provision, which enables China to take unilateral retaliatory actions against safeguard measures on Chinese product imports, It indicates that the provision could be operated in an arbitrary manner as the US Super 301, and lead to infringements of WTO disciplines. This paper indicates that the foregoing elements could lead to mort trade disputes between Korea China regarding safeguard measures and subsequent retaliations on the hills of the so called the Garlic War. The current article goes on to offer policy recommendations toward deterring such disputes. First, it recommends a more active invocation of Korea's own retaliatory provision against China's unilateral actions at least to gain negotiating leverage. Second, it sites problems involving China's still conspicuous state-trading practices, and proposes to raise issues again China to induce more faithful implementation of WTO disciplines Final, it stresses the importance of preventing disputes before they arise, and suggests several specific preventive measures.