• Journal of Arbitration Studies
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• v.26 no.2
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• pp.27-44
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• 2016

The use of program formats has slowly but surely developed into an important component of the television industry. This article examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. From both the social and commercial standpoints, television formats are valuable creations. Understanding the two products, the paper and program stages, of a television format and their respective markets, is fundamental to discussions of its legal protection. Interestingly, under current law, the less-developed stages of the process (program ideas and paper formats) are awarded more protection than the aired program format, which accumulates higher levels of investment, creativity, and expression. Internal industry mechanisms, such as vertical integration, damage to reputation, and industry institutions, exist in both markets and are still able to control and influence members' behavior to some extent. However, while the influence of internal industry mechanisms is still strong in the paper format market, in the program format market, which continues to grow, such mechanisms have weakened, amplifying the importance of a clear legal system. The absence of protection will certainly not completely eliminate the production of new program formats. However, these factors do not add up to a case against protection. The changes in the program format market in the last two decades support the theory that the overall effect of providing legal protection for TV formats would promote beneficial competition and encourage more original creations. The underlying question for television formats should not be whether to protect but rather how.

• Journal of Arbitration Studies
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• v.16 no.1
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• pp.315-341
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• 2006

이 논문은 1999년에 전면 개정된 한국의 중재법과 1925년에 제정된 미국의 연방중재볍 및 2000년에 제시된 개정통일중재법의 내용 중 중재인의 권한과 의무들에 관한 규정들을 비교 분석한 것이다. 우선, 미국 중재법의 기본법이라 할 수 있는 연방중재법은 1925년에 제정된 이래 중재 이슈에 관한 발전들을 담아내지 못한 채 진부한 과거의 법률을 그대로 유지하고 있다. 따라서, 중재인의 권한과 의무에 대해서도 중재판정과 같은 기본적인 권한 규정 외에 중재인의 임시적 처분이나 민사책임의 면제, 고지 의무등 새롭게 진전된 중재 환경의 변화나 논의들이 다루어지지 않고 있다. 그러나, 미국의 통일주법위원전미협의회가 주체가 되어 제시한 2000년의 개정통일중재법은 중재이론이나 케이스의 발전들을 반영하였을 뿐만 아니라, 중재인의 권한과 의무에 대해서도 훨씬 구체적인 규정들을 담아내고 있다. 개정통일중재법은 중재언의 권한을 개정 이전보다 훨씬 강화하는 대신, 보다 엄격한 윤리적 의무를 부과함으로써 균형을 유지하려 하고 있다. 특히, 중재인의 올바른 중재판정을 이끌어 내기 위해 증거 확보에 있어 보다 강한 절차적 권한을 부여하고 있는 것이 특정이다. 아울러, 중재인으로 하여금 임시적 처분을 내릴 수 있는 권한을 부여하고 있을 뿐만 아니라, 징벌적 배상을 결정할 수 있게까지 규정하고 있다. 그러나, 중재인의 절차적 권한의 강화는 동법이 의도한 바와는 달리 중재를 재판에 유사한 구조로 만듦과 동시에, 중재의 신속성과 최종성을 해치는 결과를 초래하는 것이 아닌가 하는 우려와 지적을 낳기도 한다. 한편, 한국의 중재법은 중재인의 임시적 처분권한과 고지의무를 규정하고 있지만, 미국의 개정통일중재법과 달리 민사적 책임면제 규정을 두고 있지는 않다. 특히, 한국 중재법에서 중재인은 증거를 수집하기 위하여 당사자의 임의적 협조에 의존하지만, 미국의 개정통일중재법에서는 증거개시제도까지 채택하고, 제 3 자도 소환할 수 있는 등 중재인의 절차적 권한이 훨씬 강하므로 한국 중재법에서 중재인의 절차적 권한은 미국의 개정통일중재법에서의 그것보다는 훨씬 제한적이다. 한국의 중재를 더욱 실효성 있게 하기 위해서는 중재법에서 중재인의 절차적 권한에 관한 규정을 보완해 주어야 할 것이다. 또 성공적인 중재를 위해서는 중재인의 전문성과 함께 윤리의식이 중요하므로 상사중 재원은 별도의 중재인 윤리규정을 제정해야 할 것이다.

• Journal of Arbitration Studies
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• v.22 no.2
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• pp.31-52
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• 2012

Although political uncertainty exists between China and Taiwan, the two countries have been expanding their economic exchange since the 1980s. That economic exchange is not limited to trade, and its investment segment is constantly expanding. The investment was one-sided by Taiwan in the past, but since a change in policy by the Taiwan government in 2009, Chinese capital is able to flow into Taiwan for direct investment. These kinds of policy changes related to investment between the two countries require follow-up actions such as profit protection for investors, elimination of investment limitations, simplification of investment procedures, and establishment of an investment dispute resolution system. The main topic of this study is the resolution mechanism for investment disputes between China and Taiwan. At present, an individual investment dispute between two countries is settled according to each country's own regulations for dispute resolution. However, these two countries have not prepared dispute resolution regulations related to cases of investment disputes between Chinese or Taiwanese investors and the Chinese or Taiwanese government, or between the Chinese government and the Taiwanese government. Moreover, they do not have any agreements related to investment disputes. Therefore, in this paper, I enumerate the regulations related to investment dispute resolution between China and Taiwan, and then I point out the problems and suggest solutions for improvement. Also, through this study, I would like to contribute to establishing and implementing an investment dispute resolution mechanism between South Korea and North Korea.

• Journal of Arbitration Studies
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• v.19 no.1
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• pp.99-119
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• 2009

In modern capitalistic society, the harmed consumers like consumer complaints etc. are increasing day by day being caused by mass production and mass consumption etc. These consumer damages can come out as many types, but can be the most typical form. If there is a majority of the small sum damage, being saved by legal procedures is a fact that many consumers renounce it for long time, lots of expense and the complexity of the process etc. So, the government enforces consumer groups suit and collective dispute mediation system revising Framework Act on consumer. Specially, collective dispute mediation system, one of the ADR, saves the harmed consumers and accomodates efficiency in management of consumer dispute settlement commission by dealing with it collectively if the same or similar damage without a legal procedure happens to a great number of consumers. However, collective consumer dispute mediation system also has a number of problems. Therefore, this thesis is looking into the function and procedure of the collective consumer dispute mediation system on Framework Act on consumer as well as its problems and ways of improving it.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.139-160
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• 2020

Shalish is a key ingredient of the dispute resolution culture in Bangladesh since a formal court system has been known to show inefficiencies, such as overburdened cases and litigation process delays. This paper investigates the main function of Shalish and examines the evolution of Shalish in the perspectives of its three variants: a community-based Shalish, a village court, and an NGO variant of Shalish in modern extensions. It was found that traditional Shalish may play a role in the dispute resolution system in modern villages. A village court is a kind of hybrid dispute resolution system combining an informal dispute resolution with a formal court system. A village court is administered by the Union Parishad without intervention from the central government. Both the Shalish and village court have the weakness of unfair verdict exercised by local elders within a community. For this reason, an NGO variant Shalish is to reflect voices of women and other lower people in the community. To this study's interpretation, a village court is a new kind of Shalish combined with a formal court system while an NGO variant Shalish is also a "new" Shalish combined with a mediation system. In this respect, core elements of Shalish tradition have not been changed although various forms of new dispute resolution systems have emerged in the modern world.

• Journal of Arbitration Studies
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• v.23 no.4
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• pp.139-167
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• 2013

Mediation, which is part of ADR, is a method used to settle disputes amicably by employing a third party who is in a neutral position. Utilization and attention on meditation are increasing in place of litigation and arbitration owing to its effectiveness in terms of time, cost, and effectiveness in achieving an amicable settlement. As to Korea, mediation at the civil level was employed by the KCAB in July 2012 but its utilization was in ABC stage compared to mediation at the governmental and judicial levels. Based on this situation, this study reviewed the guideline and system of the KCAB through a comparison of the management system between the KCAB and AAA where mediation was in good use. This study further suggests solutions as to the development of an international commercial mediation system First, the KCAB rule is needed to create a mediation language, mediation place, mediator internationalization, and so on. Second, a system backup is necessary to ensure the enforceability and effectiveness of mediation. Third, a unified mediation law in Korea is desirable for the harmonization of mediations at civil, governmental, and judicial levels. The unified mediation law, if it is made, may lead to an international base where this requirement exists. Fourth, advertising the merits of mediation to the public is necessary. Fifth, securing specialized mediators and relevant training are essential. If the above requirements are implemented, Korea would advance in international commercial disputes.

• Journal of Arbitration Studies
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• v.30 no.4
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• pp.3-29
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• 2020

The WTO's dispute settlement system has played a significant role in settling trade disputes between countries, and its function and role have been expanded by handling about 596 disputes since its establishment in 1995. This shows that the WTO's dispute settlement system is gaining enormous trust among member countries that it recognizes as a fair, effective, and efficient system for resolving trade disputes. The U.S. remains uncooperative in the WTO dispute settlement system, citing disregard for the 90-day deadline for appeals, continued service by persons who are no longer A.B. members, issuing advisory opinions on issues not necessary to resolve a dispute, A.B. review of facts, and review of a member's domestic law de novo. The A.B. claims its reports are entitled to be treated as a precedent. These problems should be gradually improved through various discussions and agreements by establishing a multilateral forum for resolving disputes and gradually ending the problems through reform of the DSU.

• Journal of Arbitration Studies
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• v.17 no.3
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• pp.121-143
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• 2007

The law of Jus Rerem of China enacted on March 16, 2007 came into force from October 1st, 2007. China has enacted the law of Jus Rerem. This means that all three nations of Northeast Asia have formally and substantially similar legal terms and conceptions. Therefore, they will be reciprocally influenced on the legal matters related Jus Rerem. In the year 1949 when China, as a communist country, was originally established without the private ownership system, the law of Jus Rerem was not introduced. Since the reform and the open-economy policy in the year 1978 came into force, it has become important that newly acknowledged private property has been stipulated by the law of Jus Rerem. Arbitration Law of China is enacted on August 31th, 1994 and came into force from September 1st, 1995. It is a basic law which rules Chinese arbitration system. China has enacted the law of Jus Rerem, "conformed with the 21st century", by solving a lot of issues in dispute. A socialistic idea, a traditional Chinese idea and realistic conditions of the market economy were integrated into the law of Jus Rerem. It would have a very good effect on the growth and prosperity of China.

• Journal of Arbitration Studies
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• v.27 no.4
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• pp.73-90
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• 2017

After the conclusion of the $18^{th}$ CPCNationalCongress, the Shanghai Free Trade Zone was established, and the One Belt One Road Initiative was brought up. These measures accelerate the development of international commercial activities as related disputes grow in variety and quantity. To better settle international commercial disputes and increase the influence of China in this area, this article reviews and analyzes the development of international commercial arbitration in China. In the conclusion part, it gives suggestions for international commercial arbitration in China in order to improve and accelerate the further development of international commercial arbitration in China.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.46
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• pp.315-350
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• 2010

The rapid growth of Korea-China trade that was since the establishment of diplomatic relations in 1992, led China to surpass the United States and Japan to become Korea's largest trading partner in 2009. "The largest trade" also means "the most disputes", so it is essential to study on dispute settlement and enforcement system of the two. Therefore, in order to make the traders correctly understand and use the arbitration as a dispute settlement method in both China and Korea, this article makes a comparative study on arbitration system between the two countries. And finally, it analyzes the enforcement situation of arbitral award in China, then provides the author's personal recommendations as a countermeasure against the poor enforcement system in China.