• 한국중재학회지:중재연구
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• 제17권1호
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• pp.3-32
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• 2007

This age is called the age of global trade, and the World Trade Organization is a forerunner in promoting the global free trade through multilateral negotiations as the global level. On the other hand, regional economic cooperation such as North American Free Trade Agreement(NAFTA) is appearing, saying that promotion by WTO takes too much time. As is known to everybody, Europe is on the way of integrating member states through EU not to mention economic cooperation. Even in Asia such tendency is shown through ASEAN, Korea, China and Japan in Northeast Asia share geographical proximity, many common historical experiences, and similar cultural norms and values although they have disparities in stages of development, trade and economic policies, and financial and legal frameworks. Under the situation, efforts have been made between three countries of Korea, China and Japan for the conclusion of investment agreements including FTA. If the conclusion of the FTA between the three countries would be realized, it would promote regional trade and investment, contributing to economic growth in the Northeast Asian region. The writer in this paper reviewed the settlement of private commercial dispute including investment dispute arising from the FTA and investment agreements. The investment dispute is quite different from an ordinary commercial dispute arising from commercial transactions in view of disputing parties, applicable laws and rules, etc. Therefore it is a problem of vital importance that the parties interested in investment under the FTA as well as the relevant investment agreement should understand and cope with the settlement mechanism of investment disputes arising therefrom. The ICSID Convention provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. All contracting states of the ICSID Convention are required by the Convention to recognize and enforce the ICSID arbitral awards. The New York Convention(formally called "United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards") is also applicable for the enforcement of arbitral awards to be rendered under the FTA. As to applicable rules, the UNCITRAL Arbitration Rules may be required for the settlement of investment disputes under the FTA. This Rules has adopted by the internationally recognized arbitral organizations although it was developed primarily for use in ad hoc arbitration. The promotion of arbitral cooperation may be realized through agreements between arbitral institutions. Especially under the NAPTA system, a central common system was established to resolve jointly private commercial disputes arising from such free trades by the initiative of arbitral organizations among the member countries. It is called Commercial Arbitration and Mediation Center for the Americas(CAMCA), which may be a good example for the settlement promotion of the private commercial disputes between Korea and other relevant countries.

• 한국중재학회지:중재연구
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• 제16권2호
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• pp.3-49
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• 2006

The purpose of this paper is to make research on the settlement mechanism of the commercial disputes between the South and the North of Korea. Also, this paper is to make research on the south-north Korea's cooperative tasks to promote the disputes settlement, including the operation and management of the South-North Arbitration Commission as well as the enactment of the South-North Arbitration Rules. To realize the spirit of the South-North Joint Declaration of June 15, 2000, the Authorities concerned of the South and the North of Korea have reached an agreement titled 'Agreement on Settlement Procedure of Commercial Disputes' on December of the same year. As the follow-up measures of the said Agreement, the South-North Authorities have signed an another agreement called 'Agreement on Organization and Administration of the South-North Arbitration Commission' on October, 2003, which is becoming vital importance for settlement of the commercial disputes between south and north Korea including the Gaeseong Industrial Complex. Gaeseong, a city surrounded by the North Korean military and a symbol of inter-Korean tensions, is now turning into a peace zone where thousands of North and South Koreans are working side by side. The Gaeseong Industrial Complex project, driven by the logic and economic necessity of cooperation, has been steadily moving forward since the North designated it as a special economic zone and has enacted related laws and regulations for its development. Under the situation, the matter of primary concern is how to organize and conduct the Arbitration Commission for the prompt and effective settlement of the south-north commercial disputes. First of all, the South-North Authorities should recognize that the availability of prompt, effective and economical means of dispute resolution such as arbitration and mediation to be made by the Arbitration Commission would promote the orderly growth and encouragement of the south-north trade and investment. In this connection, the Korean Commercial Arbitration Board(KCAB) should be designated as the arbitral institution of the south Korean side under the Agreement on Organization and Administration of the South-North Arbitration Commission. The KCAB is the only authorized arbitral organization in South Korea to settle all kinds of commercial disputes at home and abroad.

• 한국중재학회지:중재연구
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• 제13권2호
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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.

• 한국중재학회지:중재연구
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• 제18권2호
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• pp.55-77
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• 2008

The purpose of this paper is to make a research on the administration and practical problems of the arbitral organization called "uth-North Commercial Arbitration Commission". The Arbitration Commission shall be set up under the South-North Agreements officially called "reement on Settlement Procedure of Commercial Dispute" and "reement on Organization and Administration of the South-North Arbitration Commission" between the South and the North of Korea. A variety means of dispute settlement including friendly consultations, conciliation and arbitration called Alternative Dispute Resolution(ADR) will be used frequently and institutionally to settle commercial disputes and conflicts arising from economic transactions between the South and the North of Korea. Under the circumstances, it is becoming a problem of vital importance how to operate the Arbitration Commission for the prompt and effective settlement of the South-North commercial disputes. First of all, the South and the North of Korea should recognize the availability of prompt and effective means of dispute resolution such as arbitration and conciliation to be made by the Arbitration Commission would promote the orderly growth and encouragement of th South-North trade and investment, for which the following measures should be taken as soon as possible : 1. Enactment of the South-North Arbitration Rules. 2. Designation of the arbitral institution by North-Korean side. In this connection, the Korean Commercial Arbitration Board(KCAB) was already designated officially as the arbitral organization of South Korean side as of April 17, 2007. 3. Arbitration shall be held in the place where the respondent has his domicile, in case that both parties fail to agree as to the place of arbitration. 4. Permission of a third country arbitration in case that both parties agree to do so. 5. To become a member country of international arbitration agreements including the New York Convention.

• 무역상무연구
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• 제63권
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• pp.89-110
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• 2014

Since the CISG came into force in 1 January 1988 in China, many cases as well as arbitral awards have been decided under the CISG during the period of about 30 years of its application in China. After the CISG entered into force and before the handovers of HK in 1997, the China courts or CIETAC applied CISG to the disputes between China party and HK party in many cases, even PRC reserved CISG article 95. On the Contrary, after the handovers of HK in 1997, the China courts or CIETAC did not apply CISG to the disputes between them in many cases with the reason that China filed an CISG article 95 declaration and HK is not a contracting unit. The matter is the China's contract law and civil law have convinced that the CISG is highly applicable as "International Practice" under the China law in appropriate circumstances, so sometimes China courts or CIETAC applied CISG based on the China law not CISG itself. As a result, some interpretation made by the China court or CIETAC might not comply with the international character of the CISG and to some extent even impaired the uniform application of the CISG. So the author expects more and more valuable cases to be reported which will be good for its further development.

• 한국중재학회지:중재연구
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• 제23권2호
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• pp.1-35
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• 2013

In the 21th century, its important role in international commercial disputes has established arbitration as the preferred form of dispute resolution. Because commercial disputes have become more complicated and varied with their quantitative increase, it is important that they be settled in a reasonable and rapid manner. Alternative Dispute Resolution (ADR) is now regarded as one of the most effective dispute resolution methods for the settling of commercial disputes and merits notice. Arbitration is a form of dispute resolution in which two parties agree to have their dispute resolved by one or more arbitrators and thereby avoid what could be costly and time-consuming court battles. Often contracts mandate that disputes be settled through arbitration. These arbitration clauses also frequently prohibit plaintiffs from banding together to bring an action on behalf of a larger class. An arbitration agreement is an agreement by parties to summit to arbitration all or certain disputes which have arisen or which may arise between them with respect to their defined legal relationship, whether contractual or not. According to the Supreme Court, general elective arbitration clauses may be considered valid in light of all the relevant facts. Arbitration has been the subject of a great deal of research and the scope of effect in arbitration agreements is a promising avenue for future research.

• 한국중재학회지:중재연구
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• 제31권2호
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• pp.77-98
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• 2021

International commercial mediation of intellectual property rights fully meets the interests of the parties in such disputes in terms of their needs for neutral forum of dispute resolution, cost-effective settlement, objective opinion of relevant experts, internationally enforceable solution. In addition, as a procedural flexibility, respected self-determination of the parties, exploration of possible creative business solutions, maintenance of business relationship and confidentiality of mediation are major characteristics which can be competitively differentiated from the lawsuit or arbitration. The settlement agreement as a result of the WIPO mediation has an effect of contract while the settlement agreement as a result of most domestic ones has an effect of judicial reconciliation which can be domestically enforced. The latter is not subject to the application of the Singapore Convention on Mediation which establishes a harmonized legal framework for the right to invoke settlement agreements as well as for their enforcement. The WIPO international mediation system and its experience may be a good reference for Korea to take an initiative to establish a globally competitive international mediation system in the area of intellectual property rights.

• 한국중재학회지:중재연구
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• 제33권4호
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• pp.37-67
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• 2023

중재는 공정하고 효율적인 분쟁해결 방법이다. 또 현대사회에서 경제발전으로 인하여 소송제도를 보완하는 매우 중요한 기능을 하고 있다. 중재제도는 고대부터 각국이 분쟁해결을 위해 각자의 전통적인 방식으로 형성되었으며, 법학의 발달과 함께 중세부터 점차적으로 법적 보장이 명확한 제도로 확립되었다. 중국에서 중재제도가 입법화 된 것은 근대 민국시대(民国时期)이지만, 분쟁 해결 방법으로 중재가 등장한 것은 고대 진한시대(秦汉时期)로 거슬러 올라간다. 현대에서 중재와 관련한 입법은 1995년에 공포한 '중재법'이다. 입법 당시 외국의 중재법과제도등에 대한 경험을 참고하였다. 하지만, 현재에 있어 중국 '중재법'은 여전히 많은 문제를 안고있다. 즉, 경제발전으로 인해 다양한 안건이 발생하면서 분쟁도 진화하고 있기 때문이다. 이에 중국의 현행 '중재법'은 개정 중에 있다. 중재법의 개정에 있어 중국의 역사적 경험을 어느 정도 참고할 수 있을 것이다. 중국에서 발생하는 분쟁 안건에 있어 중재가 고대부터 중세 및 근대, 그리고 현재에 이르기까지 경험과 특징을 살핌으로써 개정안에 좋은 시사점을 제공할 것이라 본다. 특히, 현대의 상사중재제도가 외국의 법문화로부터 중국에 도입된 후 그 역할과 효과에 대해 중국 전통의 중재제도를 분석함으로써 더 나은 개선방안을 제시 할 것이다. 이에 본 연구에서는 중국의 고대에서 현대에 이르기까지 중재제도의 기능에 대하여 연혁적으로 살펴보고, 현재 개정 중인 '중재법'에 중국 전통 중재제도가 주는 시사점이 무엇인지 검토한다. 이를 통해 장래 중국의 중재제도의 발전은 물론, 그 가치를 확인하는 좋은 연구자료가 될 것이라 본다.

• 무역상무연구
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• 제68권
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• pp.123-148
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• 2015

Central Asian Countries had been independent in 1991 from USSR. Since then it have been increasing foreign trade and investment amount with outside countries including China, Japan, EU and South Korea. Korean enterprises and entities have endeavored to secure plentiful natural resources, oil and gas energy and expand the market share to exporting the consuming and industrial competitive goods and services for those countries. In the case of disputes of commercial transactions and investment, arbitration is regarded as a dispute resolution system which has been preferred in international transactions and investments by the business world. Since the collapse of the USSR, Central Asian Countries have worked to modernize its arbitration law and procedure to conform with international standard rules. Arbitral legislation in Central Asian countries is based on the Model Law as adopted in 1985. However, CIS's legislation systems of arbitration are not satisfied with the international standard in national laws and practices. That is the reason to consider for the specific parliament about arbitration for the dispute resolutions in the commercial transaction and investment between Korean enterprises and CIS. In this article, it is discuss problems and its alternatives in the dispute resolution about the commercial transaction and investment into Central Asian countries including the tendency to the increasing the trade volumes of goods and investment between South Korea and CIS. According to this article, South Korea consider the long term strategy followed the preferred economic relative partnership for business success on commercial transaction and investment with the Central Asian Countries.

• 한국중재학회지:중재연구
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• 제34권1호
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• pp.51-74
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• 2024

Korea continues to invest in the IT industry and is currently regarded as one of the five major powerhouses in the field of intellectual property. However, it is evaluated that this status is only limited, and the level of intellectual property protection and dispute resolution does not reach a level commensurate with the status of one of the five major intellectual property powers. To address these problems, the Korean government has enacted the Arbitration Industry Promotion Act in 2017, which aims to strengthen national competitiveness by fostering the arbitration system as an industry and provide systematic support so that the arbitration industry can become a future growth engine. In addition, in accordance with Article 3 of the 「Arbitration Industry Promotion Act」, the Minister of Justice must establish "the Basic Plan for Arbitration Industry Promotion" every 5 years. Great efforts must be put into establishing an Online Dispute Resolution (ODR) system at the KCAB for five years from 2024 to 2028, the Second Basic Plan for the Promotion of the Arbitration Industry period. Under these circumstances, this study presents implications and improvement measures for the development of the intellectual property-related arbitration system to protect Korea's intellectual property rights and contribute to more active intellectual property creation. In particular, this study proposes a plan to build an one-stop digital platform for KCAB to implement an efficient ODR system.