• 한국중재학회지:중재연구
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• 제27권4호
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• pp.157-177
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• 2017

World Trade Organization(WTO) has 164 members since it has established on 1995. It plays a significant role in solving the world trade disputes. The process of the dispute settlement mechanism includes five steps: Negotiation, Establishment of experts group, Deliberation of appellate body, Execution and Supervision of Verdict and the Sanctions for Default. It suggested that the higher rate of developed countries using mechanism to solving the disputes than developing countries solving disputes by mechanism through the analysis of dispute of WTO members. Meanwhile, the more powerful economic entity is, the more trade dispute will be. There are several problems of mechanism by analysis the recently famous cases of trade disputes: Overburden of experts panel, Low utilization rate of the mechanism of developing countries, Lack of economic competition policy and labor standard terms and Unfulfillment of retaliatory measures of developing countries towards developed countries. This paper propose proper solutions and advises to improve mechanism of WTO dispute settlement.

• 한국중재학회지:중재연구
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• 제31권4호
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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.

• 무역상무연구
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• 제49권
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• pp.61-86
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• 2011

Korea Supreme Court has given thirty-nine time's judgments on enforcement of Arbitral awards for thirty-six arbitration cases and made four time's decision on the arbitration cases since Korea arbitration act was enacted in 1966. Most of the arbitration cases appealed to the Supreme Court was to obtain the recognition and enforcement of arbitral awards or to set aside the arbitral awards according to the Korea arbitration Act article 36 and article 37, by reason of (a) a party to the arbitration agreement was under some incapacity under the law applicable to him or the said agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, (b) a party making the application was not given proper notice of the appointment of the arbitrator or arbitrators or of the arbitral proceedings or was otherwise unable to present his case (c) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. However, 5 cases of these arbitral awards were refused to obtain the enforcement of Arbitral awards and have been cancelled finally by the Supreme Court only by the New York Convention of 1958.

• 무역상무연구
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• 제62권
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• pp.87-109
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• 2014

This article examines the regime for the recognition, enforcement and execution of arbitral awards rendered under the auspices of the International Centre for Settlement of Investment Disputes(ICSID). The effectiveness of international arbitration depends on the degree of finality of the award and the ease with which the award may be enforced by the prevailing part. The ICSID Convention provides for rigorous finality and seeks to establish optimal preconditions for the enforcement of awards in manner that distinguishes ICSID from other international arbitral regimes. As with other classes of disputes subject to judical or arbitral jurisdiction, most ICSID cases settle. In the cases that do proceed to award, participants must understand what will happen if the losing party fails to comply with the award voluntarily and the prevailing party takes the award through phases known as "recognition", "enforcement" and "execution". Investors should assess possible execution before finalizing investments and certainly before they initiate collection proceedings on ICSID awards. An investor with a monetary award in hand should attempt to locate assets of the losing State and then obtain comparative law advice to identify jurisdictions that allow attachment of at least certain categories of sovereign assets.

• 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.

• 한국중재학회지:중재연구
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• 제21권1호
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• pp.3-31
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• 2011

In response to complexity and diversity of a social phenomenon, the dispute also is various, therefore can not be settled efficiently by means of court adjudication to which applies a law strictly. To overcome such problems we are going to seek to make use of arbitration. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. It could be the object of arbitral proceedings that disputes which are capable of a settlement by arbitration. It is a matter for debate that disputes containing punitive damages may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. To offer some solution to these issues, it is necessary to inquire into the nature of punitive damages. the policy and function of alimony, the fair apportionment of a loss. Moreover, international relations formed with international transactions should be considered. Punitive damages would be the object of arbitral proceedings as the dipute in private laws. When punitive damages pursue only punishment in the domestic arbitration that there is not foreign factors, arbitral tribunal could not make arbitral award containing punitive damages. However, if punitive damages are admitted under the rules applicable to substance of dispute, and there is the arbitration agreement in which is implied that the parties agree to submit to an arbitral award, arbitral tribunal could make arbitral award containing punitive damages in international arbitration. When it is questionable whether it is offend against our public policy or not, that we accept the effect of arbitral award containing punitive damages, and we admit the enforcement of it, we have to take the nature of punitive damages, the policy and function of alimony, the fair apportionment of a loss and the stability of international transactions into consideration.

• 한국중재학회지:중재연구
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• 제17권2호
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• pp.71-100
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• 2007

To promote the way of resolving the increasing disputes regarding international intellectual property by arbitration, we should overcome uncertainty thwarting the dispute resolution; i.e., whether a dispute regarding intellectual property would be an arbitrable subject, whether the arbitration agreement would be valid and enforceable, and whether the arbitral award could be recognized and enforced in a foreign country. This article is intended to seek how to promote and facilitate the resolution of international disputes regarding intellectual property by arbitration. This article in Chapter II will examine the characteristics of the IP disputes first. Chapter III of this article will study arbitrability of IP disputes. Then, Chapter IV will discuss the requirements, validity, and effectiveness of arbitration agreement of international IP disputes. The author will discuss the procedure of arbitration of the international IP disputes in Chapter V, and finally the recognition and enforcement of foreign arbitral awards thereon in Chapter VI. Due to the so called 'territoriality principle' in intellectual property, the international disputes thereof confront numerous procedural setback, e.g., jurisdiction, conflict of laws, the recognition and enforcement of foreign judgments or awards. To overcome such setbacks, I propose resolution of international IP disputes by one-step arbitration procedure through widely recognizing the arbitrability of IP disputes, and utilizing unnational nature of arbitration. In addition, I propose to set up the principles as to arbitration of the international IP disputes as the American Law Institute has formulated the principles for International Intellectual Property Litigations. By setting up these principles, I am certain it will be helpful to just and prompt resolution of international IP disputes which occur more frequently these days.

• 한국중재학회지:중재연구
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• 제33권1호
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• pp.3-22
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• 2023

The purpose of this study is to present implications by analyzing the Swiss Federal Court's annulment of the arbitration Awards in Court of Arbitration for Sport(CAS). As international interest in the sports sector increases, related disputes are also increasing. Therefore, the role of CAS specializing in sports disputes is becoming very important. In particular, the Swiss federal court's annulment of the arbitral awards made by the CAS could contribute significantly to the development of sports arbitration in the future. Looking at the case analyzed in this study, first of all, it is about the partiality of the arbitrator. The court judged that the arbitrator posted and shared racist articles on SNS, which could be sufficiently biased. Next, it is about the uncertainty of the arbitration clause. The arbitral award was finally canceled due to the issue of whether the CAS could make an arbitral award with jurisdiction over a clause that includes both dispute resolution through a sports organization and dispute handling in a national court. As a result of the analysis of this study, in the case of unclear arbitration provisions, it will be necessary to prepare an arbitration agreement. In addition, in the case of unclear arbitration provisions, it will be necessary to prepare a post-arbitration agreement. Finally, in order to revitalize sports arbitration, it will be necessary to train professional arbitrators in Korea, support them to work internationally, and establish specialized arbitration institutions.

• 한국중재학회지:중재연구
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• 제21권1호
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• pp.239-257
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• 2011

This article examines the requirements of Article 37 of the ICDR International Arbitration Rules and issues that could arise if a party petitions a U.S. Federal Court to enforce an emergency arbitrator's Article 37 decision to grant pre-arbitration provisional relief. On May 1, 2006, ICDR introduced a new procedure for the granting of emergency arbitral relief under its ICDR Rules. The procedure enables a party to apply for emergency interim relief before the appointment of an arbitrator or tribunal to adjudicate the merits of the dispute. Instead, the application for emergency relief is considered by an emergency arbitrator appointed by the ICDR. In short, the ICDR has quickly appointed emergency arbitrator and resolved a challenge to an appointment within 36 hours. In addition, the emergency decisions have been issued within just a couple of weeks. In particular, we looked at what would happen after Article 37 emergency relief is granted. Based on my examination of U.S. cases on the enforceability of interim awards and orders, We conclude that U.S. courts would enforce Article 37 interim measures, whether they are characterized by the emergency arbitrator as an interim order or award. Where the situation warrants, arbitration executives should embrace and use emergency relief procedure of ICDR Rules.

• 한국중재학회지:중재연구
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• 제14권1호
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• pp.245-272
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• 2004

This study is focused on the cases that Korean hotels stepped into international airports, public facilities, and successfully solved the contract related disputes by using arbitration in accordance with arbitration law. This case study on arbitration derives the hotel management strategy points as follow: 1. It must be a good chance for a famed hotel to step into international airports that have big publication effect. The feasibility study focused on marketing feasibility rather than finance feasibility may, however, not be good. 2. Written contract is required in entering into a contract with government organizations. However, oral contract still exists. 3. If the contract is made to always pay the higher amount between annual minimal guarantee and sales rate in expenses of store using charge, such contract shall cause very hard sales environment from the initial stage of the contract. 4. The airports have made optional contracts for national service. Such optional contracts are, however, not free from public criticism. 5. This case study is the first case study on arbitration applied to hotels. This study shall be, therefore, frequently referred to in setting a management strategy of hotels that want to run restaurants in another facility outside themselves.