• 한국중재학회지:중재연구
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• 제22권3호
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• pp.215-238
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• 2012

This paper is to review the interim measures of arbitral tribunals in international commercial arbitration and to compare the emergency arbitrator systems of international arbitration institutions including the ICDR, SCC, SIAC, ACICA, and ICC. Most arbitration legislation and arbitration rules permit the arbitral tribunal to grant orders for interim measures of protection. Orders for interim measures by the arbitral tribunal are not self-enforcing. However, the revised articles with regard to interim measures of UNCITRAL Model Law of 2006 are regarded to contribute significantly to the effectiveness of interim measures in international commercial arbitration. A party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal may make an application for such measures. Major international arbitration institutions have their own rules and provisions for the emergency arbitrator system, which was set forth first by the ICRD in 2006. The application requirements for emergency arbitrators are almost the same. However, there are significant differences in details such as appointments and applications for challenging emergency arbitrators, the process and form of the emergency arbitrator's decision, etc. Therefore, it will be necessary to consider these differences for more desirable emergency arbitrator proceedings in Korea.

• 한국중재학회지:중재연구
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• 제30권2호
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• pp.3-21
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• 2020

This study focuses on the binding power of the interim measures of the arbitral tribunal in ICSID arbitration and the effects of non-compliance. Upon consideration of the intentions of those who made these rules, given the interpretation of the provisions of Article 47 of the ICSID Convention and Article 39 of the ICSID Arbitration Rules, it was found reasonable to consider that the interim measures made by the arbitral tribunal in ICSID arbitration were not binding. However, in actual ICSID arbitration, most arbitral tribunals approve the binding power of the interim measures based on the purposes and the characteristics of the interim measures. As such, there is a certain distance between the legislative intention for interim measures in ICSID arbitration and the judicial practice, but considering the demand for maintaining the integrity of the arbitration procedure, it is reasonable to consider that the interim measures are binding. In addition, the fact that the interim measures have binding power can increase the possibility that the party will comply with the interim measures. Thus, the binding power of interim measures not only encourages voluntary compliance to the interim measures of the party, but can also cause negative consequences for the party if it is not met. In other words, the arbitral tribunal will be able to form negative inferences against the party who does not comply with it in a procedural side, and in the practical side, the party who does not comply with the interim measures will be compensated for the additional damages for non-compliance.

• 한국중재학회지:중재연구
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• 제26권2호
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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.

• 한국중재학회지:중재연구
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• 제26권4호
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• pp.63-82
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• 2016

In order to cope with the changes of International Commercial Arbitration, the Shanghai International Economic and Trade Arbitration Commission (SHIAC) regulated an Emergency Arbitrator for the first time, implementing the arbitration rules in China (Shanghai) Pilot Free Trade Zone on May 1, 2014. Moreover, the China International Economic and Trade Arbitration Commission (CIETAC) also regulated the Emergency Arbitrator in the revised arbitration rules on January 1, 2015. However, it caused considerable contradiction that SHIAC and CIETAC admitted an interim measure decision by the Emergency Arbitrator under the circumstance that the Chinese court can impose a preservative measure in the Civil Procedure Code (CPC) and Arbiration Act. This study attempted to compare the main contents of an Emergency Arbitrator regulated in the arbitration rules of SHIAC and CIETAC with arbitration rules of representative arbitral institutions which operate an Emergency Arbitrator. In addition, this study verified the application features and problems through comparing the rule of SHIAC and CIETAC with the rule related to the preservative measure in Chinese law.

• 한국중재학회지:중재연구
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• 제30권2호
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• pp.121-144
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• 2020

If the interim disposition of the Arbitration Tribunal is not immediately enforceable, it will only give pressure to the other party concerned and the arbitration could work against him if the other party fails to implement it. If enforcement is impossible, the disposition will have no practical effect or practical benefit. In addition, if a system is contrary to its unique characteristics or nature, it will not function as a system or it will become an unnecessary decoration. There is no room for argument that the above provisions are wrong or misinterpreted if the temporary disposition in arbitration cannot be characterized by its characteristics, such as its provisionality, urgency, incidentality, or invasibility. As attracting international arbitration cases can create enormous added value for the national economy, countries are scrambling to create a mediating-friendly legal environment in their countries, and Korea has been more active in arbitration than in the past. Despite various efforts, however, attracting international arbitration cases is still a long way off. Therefore, Korea should create a mediating-friendly, legal environment to attract arbitration cases. There are many reasons why arbitration is activated internationally, but the most important of them is that it is easier to approve and execute. The use of the approval and execution of heavy court is, in turn, the most important requirement of a mediating-friendly environment. It is natural that temporary dispositions made in arbitration should be as easy to approve and enforce as in the case of arbitration. In addition, it is natural for the parties to consider the use of approval and execution when deciding where to mediate or when applying for arbitration; thus, the degree of ease of execution, along with the procedural use of arbitration or provisional disposition, will be a measure of the likelihood of hosting international arbitration cases, as well as the activation of arbitration.

• 한국산학기술학회논문지
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• 제21권9호
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• pp.480-486
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• 2020

국가등록문화재 제377호 '대흥동 일·양 절충식 가옥'은 재개발사업지 내 위치한 사유 등록문화재로서 2013년 이전복원되었다. 원형보전의 규제가 강하지 않은 등록문화재가 재개발사업 과정에서 이전복원된 것은 흔치 않은 사례이다. 지정문화재에 비해 원형 보전에 대한 관리규정이 미약한 등록문화재가 재개발사업 부지 내 위치한 경우는 존치 혹은 이전을 강제할 수 없으며 개발 논리에 의해 멸실되기 쉽기 때문이다. 본 연구는 '대흥동 일·양 절충식 가옥'이 이전되기 전 대지의 소유 관계 및 분할 등의 이력부터 이전되는 과정의 행정 및 건축적 변화, 문화재 등록과정 등을 살펴보고, 사유 등록문화재임에도 불구하고 이전복원될 수 있었던 배경을 밝히는 동시에 현황에서 드러나는 한계점을 관련법에 근거하여 분석하였다. 등록문화재의 원형보존과 적극적 활용 규정은 소유자의 자발적 의지에 크게 의존하는 바, 소유자의 성격이 변경되는 재개발사업의 경우 원래 등록문화재의 취지에 맞는 원형보존의 자율성을 기대할 수 없게 된다. 이에 근대건축문화자산인 등록문화재가 재개발사업 부지 내 위치했을 경우 원만한 이전복원이 진행되기 위해서는 제도의 기본 전제에 대한 수정이 필요하다. 재개발사업 구역지정 단계에서부터 해당 지방자치단체의 지정문화재로 임시지정하고 해당 등록문화재를 공적 자산으로 전환시켜 사업시행계획인가, 관리처분인가, 사업준공 등 재개발 사업의 각 주요단계별 이에 적합한 보호처분을 시행하는 제도 개선을 제안한다.