• Journal of Arbitration Studies
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• v.15 no.3
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• pp.113-137
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• 2005

In the provisions of 'the Arbitration Law of China, there are special provisions for international arbitration. When a court refuses the recognition and enforcement of foreign arbitral awards or cancel the domestic awards relating to international arbitration, they have to adopt the provisions of 'Chinese Civil Procedure Law'. These provisions are the same as the provisions of Korean Civil Procedure Law concerning the reasons of renewal. In the Korean Arbitration Act, those provisions disappeared when it was revised on December 31, 1999. Among the characteristics of the Chinese arbitration system, a serious question is that it provides only institutional arbitration and there is no ad-hoc arbitration in the Chinese Arbitration Law. On the other hand, when the parties appoint three arbitrators according to their agreement, the parties appoint the third arbitrator by mutual agreement and when they fail to agree, the Arbitration Committee appoints the third arbitrator. In practice, as the parties hardly agree on the third arbitrator or sole arbitrator, the Committee usually appoints them. And appointing an arbitrator from out of their panel of arbitrators is permitted these days only under examination by the Arbitration Committee in accordance with the arbitration rules of the China International Economic and Trade Arbitration Commission, Other arbitration committees except the China International Economic and Trade Arbitration Commission are still prohibited from making appointments from out of their panel of arbitrators. Accordingly, arbitration in China cannot be predicted and poses a question about legal stability as party autonomy is restricted in the appointment of arbitrators and arbitral procedure. Such being the case it is strongly recommended to select Korea as the place of arbitration in transactions with China. However it is better to arbitrate than to file a law suit in China.

• Journal of Arbitration Studies
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• v.31 no.4
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• pp.51-70
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• 2021

Chinese courts seem to be indifferent or ignorant of truncated arbitration. In other words, the Chinese court canceled the arbitration award made by truncated arbitration except for the Pingdingsan Case among the four arbitration cases related to the domestic arbitration award reviewed in this paper on the ground that it violated the composition of the arbitral tribunal or the arbitration procedure. A Chinese court has canceled the arbitration award by judging only based on the composition of the arbitral tribunal and the legal process of the violation of the arbitration procedure not by determining whether the domestic arbitration award made by the truncated arbitration meets the conditions for the application of truncated arbitration as stipulated in the Arbitration Rules. Moreover, it seems that the Chinese court made a serious error in the application of the relevant regulations in the Pingdingsan Case, which ruled that the truncated arbitration did not violate the legal process. In this case, the Chinese court admitted truncated arbitration under logic process that it was not necessary to wait until the final hearing to apply the truncated arbitraion because one arbitrator was absent before the final hearing, but the truncated arbitrator had already formed his/her opinion before the absence. However, in the case of Marshall Investment Corporation, a case related to foreign arbitration, the Chinese court rejected the approval and execution of the truncated arbitration award by strictly applying the laws and timing of the truncated arbitration. Since only one case has been identified in the main text, it is difficult to make a definitive judgment, but considering these cases, it seems to be that the Chinese courts apply different standards to domestic and foreign arbitration awards to determine the legality of truncated arbitration.

• Journal of Arbitration Studies
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• v.15 no.2
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• pp.263-292
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• 2005

In China, as far as the enforcement of the award is concerned, a three-pronged regime exists : each for domestic, foreign-related and foreign awards. As opposed to domestic awards, foreign-related awards are defined as those involving 'foreign-element.' Among them, this article focuses on the enforcement regimes of foreign-related and foreign arbitral award, and strives to provide a practical outlook of the arbitral award enforcement regime in China. For that, this article consists of five chapters. In chapter I, the purpose and scope of this study are mentioned; In Chapter II, the types, the statutory framework, the related measures, the statistical assessment on enforcement of arbitral awards are addressed. Chapter III points out some issues on the enforcement regimes of foreign-related and foreign arbitral awards, with focus paid to the recognition of foreign-related arbitral awards, the substantive judicial review of foreign-related arbitral awards, and the refusal of enforcement with the social and public interest ground. Chapter VI introduces two non-enforcement cases of foreign-related and foreign arbitral awards. Lastly in chapter V, the author makes a proposal to improve the enforcement regime in China. Although China already obtained a certain level of achievement, she still need to be undertaken by the government and judicial authorities to offset the negative effects of some obstacles to hamper the enforcement such as protectionism so that she may create a more favorable arbitration environment.

• 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.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.24 no.2
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• pp.161-181
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• 2014

This thesis, which mainly focuses on the characteristics of the Chinese arbitration system, will mainly deal with three characteristics and analyze the causes that directly or indirectly influence them. The first characteristic is China does not recognize ad hoc arbitration. Ad hoc arbitration is the initial form of arbitration, and it occupies an important position in many countries; however, China's judicial system does not recognize it. There are many disadvantages for building a system of ad hoc arbitration in China; i. e., the arbitration system in China is undeveloped and shot-time established, and it lacks social and civil society basis, along with a credit system, which the Western ad hoc arbitration relies on. The second characteristic is the existence of excessive judicial supervision and control over arbitration in China. Judicial supervision over arbitration has been the customary practice in each country of the modern world, but sharp variation exists in the legal stipulations and the courts' attitude toward the standard to be applied in the supervision over arbitration. In China, there has always been a controversy over judicial supervision, and the standards applied in the supervision over arbitration by courts in different regions are less than identical. The last characteristic is the existence of a combination of mediation with arbitration, which is called Arb-Med in China. Such means that in the process of arbitration, the arbitrator may conduct mediation proceedings for the case it is handling if both parties agree to do so. Under the Chinese law, Arb-Med may lead to a binding and enforceable outcome. However, it has several legal disadvantages and almost no country adopts this system. China still insists that this system will go on because Arb-Med was first made in China, and its effect was proven through long-time practice in CIETAC.

• Journal of Arbitration Studies
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• v.17 no.2
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• pp.101-124
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• 2007

The legal systems and open-door policies to foreign affairs in North Korea have been followed by those of China. Whereas an arbitration system of South Korea accepted most parts of UNCITRAL Model Law, North Korea has succeeded to an arbitration system of a socialist country. China, under the arbitration system of socialist country, enacted an arbitration act reflected from UNCITRAL Model Law for keeping face with international trends. We have used these three arbitration system as a tool for analyzing an arbitration system in North Korea. With an open-door policy, North Korea and China enacted an arbitration act to provide a legal security. Therefore, the core parts of arbitration system in North Korea and China are based on a socialist system while those of South Korea is on liberalism. So, North Korea and China enacted an arbitration act on the basis of institutional arbitration, on the other side, South Korea is based on ad-hoc arbitration. Because of these characters, in terms of party autonomy, it is recognized with the order as South Korea, China and North Korea. Also North Korea enacted separate 'Foreign Economic Arbitration Act' to resolve disputes arising out of foreign economies including commercial things and investments. There are differences in arbitration procedures and appointment of arbitrators : South Korea recognizes parties' autonomy, however parties should follow the arbitration rules of arbitration institutes in North Korea and China. According to an appointment of arbitrators, if parties fail to appoint co-arbitrators or chief arbitrators by a mutual agreement, the court has the right to appoint them. In case of following KCAB's rules, KCAB secretariats take a scoring system by providing a list of candidates. A party has to appoint arbitrators out of the lists provided by arbitration board(or committee) in North Korea. If a party may fail to appoint a chief arbitrator, President of International Trade Arbitration Board(or Committee) may appoint it. In China, if parties fail to appoint a co-arbitrator or a chief arbitrator by a mutual agreement, Secretary general will decide it. If a arbitral tribunal fails to give a final award by a majority decision, a chief arbitrator has the right for a final decision making. These arbitration systems in North Korea and China are one of concerns that our companies take into account in conducting arbitration procedures inside China. It is only possible for a party to enforce a final arbitral award when he applies an arbitration inside North Korea according to International Trade Arbitration Act because North Korea has not joined the New York Convention. It's doubtful that a party might be treated very fairly in arbitration procedures in North Korea because International Trade Promotion Commission controls(or exercises its rights against) International Trade Arbitration Commission(or Board).

• Journal of Arbitration Studies
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• v.8 no.1
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• pp.87-122
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• 1998

This study reports on the Arbitration system in the China International Economic and Trade Arbitration commission (CIETAC) and the International Arbitration problems of Korea and China. The Chines laws including Arbitration laws are influenced by the civil Code system Particulary the German system. China is contracting state of the U N Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958 New York Convention), which became effective in the China April 22, 1987. International Commercial Arbitration is popular in China. CIETAC is the sole International Commercial Arbitration body in China. CIETAC has two sub-commissions, on is shen zhem S E Z and the other in shanghai. The CIETAC rules, are similar to the rules in effect in Countries using a civil Code system. Both an agreement to submit an existing dispute to Arbitration and an Arbitration clause in a contract relating to future disputes are recognizeal as valiad Arbitration agreements. CIETAC has the power to make a decision on disputes concering the validity of the Arbitration agreements, or jurisdiction over a specicific case.

• Journal of Arbitration Studies
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• v.23 no.4
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• pp.29-53
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• 2013

Chinese ISD has been changed a lot since the reformation policy in 1978 and it is expected that China will present a changed attitude toward its advantage as its industrialization continues to advance. This study generally examines the ISD in BIT and also considers not only the attitude of China with regard to ISD but also the changes on the Chinese side. Moreover, this study determines the areas on which the Chinese government focuses. In order to conduct this study, the author attempts to classify the attitudes on ISD into chronical change and treaty powers based on the analysis of BIT. In addition, the paper examines the main contents of ISD in BIT which previously involved an agreement such as arbitral institution, arbitral range, counter-measures of local country, standard for admitting the nationality of corporate investors, and recognition and enforcement of arbitral award. Based on analysis, this paper mentions matters that require attention and caution in the Korea-China FTA as regards investment negotiation, and also suggests instructions for investors who may face dispute with the Chinese government.

• Journal of Arbitration Studies
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• v.18 no.3
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• pp.117-138
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• 2008

This study lies on building the International Standardization of China Arbitration System for improving a relationship of mutual trust and the safety trade between China and other worldwide countries, especially, South Korea as their one of the biggest trading partners through the comparative analysis of China and UNCITRAL Arbitration Law. In this analysis, the differences from China and UNCITRAL in arbitration law are like belows ; lack of arbitrator's international mind, the limitation of private property right, prohibition of Ad. hoc arbitration, arbitrator's biased nationalism, localism, and their short specialties. a deficiency of the objectiveness for arbitrator's election, a judgement rejection of claimants by using nonattendance and walkout, impossibility of prior and temporary property custody for execution of arbitration award. etc. For the improvement of the International Standardization of China Arbitration, this paper propose as follows: 1) Extension of private property right, reorganization of tax system, realization of open competition, exclusion of 'Sinocentrism', globalization of arbitration system 2) The abolition of old fashioned bureaucracy with approval for ad.hoc arbitration 3) An education for arbitrator's internationalization, specialty, and to promote legal knowledge 4) A settlement of the third country arbitrators' selection for reflecting interested party's decision by the court in a selection system of arbitration committee. 5) Institutionalization of arbitration judgment that prevent for claimant's avoidance by using a withdrawal and an intentional absent 6) A permission of the right of claimant's court custody directly before the begging of arbitration request for the prevention for destruction of evidence and property concealment 7) Grant of the arbitration tribunal's interim measures of protection for private property preservation to the third party, proof security, prevention from the loss that selling the corruptible goods 8) Improvement of arbitration's efficiency from the exclusion of the obstacles that are forgery, concealed evidence, and arbitrator's bribe taking Lastly, I hope that this study will serve to promote friendly economic relationship between China and South Korea and strive for international equilibrium through the achievement of China Arbitration's International Standardization. I will finish this paper with a firm belief that this will lead to more advanced studies.