• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.77
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• pp.43-67
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• 2018

Arbitration is one of alternative dispute resolution systems which settle a dispute by arbitrators(private persons) based on a contract between contracting parties without a judicial litigation system involved. As a valid arbitration agreement is an essential requirement for commencement of arbitration, the first thing to be determined is whether there is a valid arbitration agreement or not when a dispute is submitted. A consumer arbitration agreement usually exists as an arbitration clause in an adhesive contract between consumers and a seller. When consumers buy a product from a seller, they are requested to agree on a general terms and conditions which are unilaterally drafted by a seller in advance. These terms and conditions are not negotiable because it is an adhesive contract and consumers are placed in "take-it-or-leave-it" position. Therefore, even though there is an arbitration agreement between consumers and a seller, it has to be carefully considered whether it has a legal effect or not. In this respect, a court will examine if an arbitration agreement has procedural unconscionability and substantive unconscionability. Therefore, as U.S is a well-advanced and arbitration-friendly country, this paper analyzes four U.S cases to find out (i) what a court considers, (ii) how a court examines and interprets procedural and substantive unconscionability and (iii) if there has been a change in regard to a court's decision. By doing so, it will provide some suggestions and guidelines for a consumer arbitration in Korea.

• Journal of Arbitration Studies
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• v.31 no.1
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• pp.83-105
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• 2021

If aggrieving consumers or employees cannot prove both substantive and procedural unconscionability, many U.S. state courts will enforce arbitration agreements. Additionally, U.S. courts weigh a variety of factors to determine whether an arbitration agreement is substantively unconscionable. For example, U.S. courts have considered one or a combination of the following factors: (1) the fairness of contractual terms; (2) the severity of contractual terms' deviation from prevailing standards, customs, or practices within a particular industry; (3) the reasonableness of goods-and-services contract prices; (4) the commercial reasonableness of the contract terms; (5) the purpose and effect of the terms and (6) "the allocation of risks between the parties." Further, procedural unconscionability characterized by surprise or lack of knowledge focuses on terms that are deceptively hidden in a mass of contract language, the object of another concealment, or imposed in the circumstances involving haste or high-pressure tactics so that they are not likely to be read or understood. This unconscionability doctrine can be applied to a situation where an alcoholic dementia-afflicted older adult is admitted to a nursing home. At that time, because she had alcoholic dementia, which precluded her reading, comprehending, writing, negotiating, or signing of any legal document, her son, who did not understand the adhesion contract, signed the standardized residential contract and the arbitration agreement.

• Journal of the Korea Academia-Industrial cooperation Society
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• v.1 no.1
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• pp.73-82
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• 2000

Conventional funding system for the university research projects is limited to a grant or subsidy type funding method which does not require an obligation of refund. Such a funding system is known as ideal one for the university research activities which in general is not a profit oriented activities. It is considered ideal in a sense that nonprofit oriented research activities gives more emphasis on creativity than on efficiency or practical value. A venture- business-start-up research activity can not be considered as a pure nonprofit oriented activities. It clearly gives more emphasis on efficiency and practical value than on creativity Recently a large portion of the venture-business-start-up research activities are carried out in the universities. When a conventional research funding system is applied to such a new type of research activities, it turned out that the success rate is much lower than expectancy. This is why a new and differentiated funding system is sought for such a new type of research activities. A funding system of loan type for a venture-business-start-up research activities is proposed herewith. A loan system naturally requires a pay back after the successful start up of the venture business. This loan system nay be considered that a business concept is grafted on a conventional funding system for the university research activities. This means that a rather loose or generous terms and conditions of the money loan case is introduced into this funding system to remedy the short comings of the intrinsic nonprofit nature of the university research activities. The point is how to improve the success rate and how to reduce the undesirable aspect of the conventional university research activities when it is practiced with the new type of research activities. After one and half year of practicing with the new funding system. it can not be asserted that a definitely positive results could be obtained. but a trend of desirable aspects could be observed such as low drop out rate. project selection efficiency, higher sense of responsibility. etc.