• 제목/요약/키워드: 중국 중재기구

검색결과 2건 처리시간 0.016초

中國仲裁机构适用CISG的做法及改進建義(중국 중재기구의 CISG에 대한 적용방법 및 개선방안) (Research on Application of CISG in Chinese Arbitration Organization and Suggestions for Its Improvement)

  • 사소려
    • 한국중재학회지:중재연구
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    • 제26권1호
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    • pp.135-157
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    • 2016
  • CISG는 국제물품매매 영역에서 가장 중요한 국제협약으로서, 많은 중재 기구에서는 중재사건을 처리함에 있어서 본 협약을 적용하여 분쟁을 해결하고 있다. 중국은 본 협약이 효력을 발생할 때부터 이미 협약의 체약국이었고 본 협약을 적용하여 여러 건의 사건을 해결하였다. 본문은 CISG가 중국에서의 법률적 지위, 중국 중재기구의 CISG에 대한 적용방법 및 적용함에 있어서의 문제점에 대하여 분석을 하고, 이에 대한 개선의견을 제기하려고 한다.

중국 투자기업의 중국 국내중재기구 이용 가능성에 관한 연구 (A Study on the Availability of Chinese Internal Arbitration Institution by the Company invested from Korea)

  • 윤진기
    • 한국중재학회지:중재연구
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    • 제24권4호
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    • pp.49-97
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    • 2014
  • This study is about the availability of Chinese internal arbitration institutions by Korean invested companies. Generally, Chinese internal arbitration institutions lack independence from government. However, because parties seeking an arbitration award have ways to get neutrality from internal arbitration institutions that guarantee party autonomy, these Korean companies can use Chinese internal arbitration institutions to resolve disputes in China. Special attention should be given to the following. First, because Korean companies invested in China are legally in the same position as Chinese companies, unless foreign-related factors intervene, when disputes occur with Chinese companies or individuals, the disputes correspond to internal dispute, and when it comes to choosing the arbitration institution, these Korean companies must choose either a Chinese internal arbitration institution or foreign-related arbitration institution. Second, most Chinese internal arbitration institutions still lack independence from government, which can influence the fairness of arbitration in the future. Therefore, Korean companies invested in China should think about alternative ways to get a minimum impartiality in arbitration cases. Third, the parties are allowed to choose arbitration rules freely in Beijing, Xian, Chongqing, Guangzhou, and Hangzhou arbitration commissions. Therefore, in arbitration cases, the parties can get impartiality by choosing arbitrators according to the arbitration rules which they agree on, or by choosing partially modified arbitration rules of those arbitration commissions. Fourth, in order to get an impartial arbitration award from Chinese internal arbitration institutions in China, it is important for Korean lawyers or arbitration experts -- fluent in Chinese -- to be registered in the List of Arbitrators of Chinese internal arbitration institution by way of signing a MOU between the Korean Commercial Arbitration Board, or the Korean Association of Arbitration Studies and arbitration commissions such as those of Beijing, Xian, Chongqing, Guangzhou, and Hangzhou which comparatively do guarantee party autonomy. Fifth, because application of the preservation of property before application of arbitration is not approved in China, in practice, in order to preserve property before application of arbitration, it is best to file another suit in China based on other legal issue (e.g., tort) independent from the contract which an arbitration agreement is applied to. Sixth, in arbitration commissions which allow different agreement regarding arbitration procedures or arbitration rules, it is possible to choose a neutral arbitrator from a third country as a presiding arbitrator via UNCITRAL arbitration rules or ICC arbitration rules. Seventh, in the case of Chinese internal arbitral award, because the court reviews the substantive matters to decide the refusal of compulsory execution, the execution rate could be relatively lower than that of foreign-related cases. Therefore, when Korean companies invested in China use Chinese internal arbitration institution, they should endure low rate of execution. Eighth, considering the operational experiences of public policy on foreign-related arbitration awards so far, in cases of Chinese internal arbitration award, the possibility of cancellation of arbitral award or the possibility to refuse to execute the award due to public policy is thought to be higher than that of foreign arbitral awards. Ninth, even though a treaty on judicial assistance in civil and commercial matters has been signed between Korea and China, and it includes a provision on acknowledgement and enforcement of arbitral award, when trying to resolve disputes through Chinese internal arbitration institution, the treaty would not be a big help to resolve the disputes, because the disputes between Korean companies invested in China and the party in China are not subject to the treaty. Tenth, considering recent tendency of conciliation by the arbitral tribunal in China and the voluntary execution rate of the parties, the system of conciliation by the arbitral tribunal is expected to affect as a positive factor the Korean companies that use Chinese internal arbitration institution. Finally, when using online arbitration, arbitration fees can be reduced, and if the arbitration commissions guaranteeing party autonomy have online arbitration system, the possibility of getting impartial arbitration award through them is higher. Therefore, the use of online arbitration system is recommended.

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