• 한국중재학회지:중재연구
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• 제18권3호
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• pp.51-69
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• 2008

The financial industry in which arbitration is most frequently resorted to so as to resolve disputes is the sector related to the securities industry. Most securities related disputes are raised from broker-dealer controversies which is not new in the Republic of Korea. The disputes between securities brokers and customers are very frequently settled by arbitration in the United States. But the arbitration in the securities area may deprive investors from securities regulation's protection. Introducing the United States' Federal Supreme Courts cases, the author explores the logic of how the pre-dispute arbitration agreement compatible with Securities regulations. However, the author insist the South Korea should more careful in accepting pre-dispute arbitration contract in securities area. Mostly because of the lack of more specific way to secure substantive fairness in securities arbitration. Also the author worries about the possibility of prevailing pre-dispute arbitration agreement in all of the securities investment contract without any other choices, or securities laws' protection. But the author also suggests to introduce public securities arbitration system of the States, and also insists the way to secure substantive fairness, or the application of securities regulations in securities arbitrations. Which may be the pre-requirements for the pre-dispute arbitration agreement in securities investment contract.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.149-181
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• 1998

• 한국중재학회지:중재연구
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• 제21권3호
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• pp.189-211
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• 2011

This article aims at analysing the practical problems of FOB and CIF terms relating to Incoterms$^{(R)}$2010 in case of L/C transactions and presenting the defending measures against them. According to Incoterms$^{(R)}$2010, FOB and CIF terms are to be used only for sea or inland waterway transport and require the seller deliver the goods on board the vessel nominated by the buyer at named port of shipment. So if FOB and CIF terms will be used in sea transport under L/C transaction, the seller should ship the goods on the nominated vessel and present the shipping document indicating "on board vessel" to the issuing bank but the parties agree to present the received bill of lading according to special condition on L/C which is" received bill of lading are acceptable". In practical transaction, FOB and CIF terms are usually used in aircraft cargo, container cargo or multimodal transport. these facts are a violation of Incoterms. Incoterms$^{(R)}$2010 which regulated that FOB and CIF terms may not be appropriate where goods are handed over the carrier before they are on board the vessel for example goods in container. These transactions are a temporary expedient and breach of Incoterms in the international trade which must be corrected as soon as possible.

• 한국중재학회지:중재연구
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• 제27권1호
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• pp.183-203
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• 2017

Two solution approaches have been suggested globally to solve the crisis of bill of lading; that is to say, electronic bill of lading and sea waybill. Electronic bill of lading is not unsettled as a solution to solve the crisis of bill of lading but sea waybill is used on a global basis to do so. The surrendered bill of lading is applied for practical usage instead of sea waybill in a short voyage among Korea, China, and Japan, owing to faster delivery at destination and lower cost than bill of lading. To surrender the original bill of lading, the consignor should submit all originals with a request letter to the carrier of goods with necessary surrender charges, if any, in doing so. Once after receiving the original bills of lading consisting of normally three originals but in some cases five, the carrier stamped "Surrendered" on the front of original bills of lading and sent a message to his counterpart at the port of destination, stating that the original bill of lading surrendered at the port of shipment and the consignee can take delivery of the goods without production of the original bill of lading at destination. The legal regime of the surrendered bill of lading is not settled as it is not considered legally as bill of lading, and the decisions rendered by each nation's courts are different according to the usages of the surrendered bill of lading. The purpose of this paper is to prevent the disputes between parties with regard to the surrendered bill of lading by studying the causes and precautions of disputes in relation to the surrendered bill of lading.

• 한국중재학회지:중재연구
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• 제12권2호
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• pp.337-372
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• 2003

Given the difficulties investors would encounter in pleading and proving their claims in court, they may well be better off in a system where less attention is paid to the law and more to the equities of the actual dispute before the arbitration panel. While this is not a system where accountability and predictability of results can be achieved, investors may fare better than they might expect. It follows then that if equitable considerations enhance rather than subtract from investors' chances of recovery, then investors need not worry about the consequences of the arbitrators' failure to apply the law. This article tracked the evolution of the arbitration process, through amendments to the pertinent securities arbitration codes of procedure, from an informal proceeding into a quasi-judicial one. Subsequently, I examined the practical difficulties arbitrators encounter in their efforts to apply the law. The Court in McMahon assumed arbitrators would apply the law and that the “manifest disregard” standard would provide sufficient judicial oversight to ensure that they did. But there is no meaningful review of arbitration awards to assure arbitrators are applying the law. Arbitration awards have no value as precedent for future arbitrations. Accordingly, there appears to be little reason to write such an award, particularly if the end result is an award immune from challenge no matter how the panel ruled. In these days, securities arbitration as a disputes resolution system is becoming a more popular practice. The trend of the courts in America has been to enforce arbitration agreements. Moreover arbitration helps alleviate some of the burden of a heavy caseload from the judiciary and is a viable method to resolve disputes in a relatively quick and efficient manner. Therefore I think it would be necessary to introduce securities arbitration system to our disputes resolution system Compared to American practices, there could be, of course, many differences in recognition on arbitration and legal structure in our country. Thus it will be an assignment to consider seriously and carefully what kind of securities arbitration system will be proper for us.

• 한국중재학회지:중재연구
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• 제12권2호
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• pp.221-262
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• 2003

In recent years, information technological revolution of using Internet in the Stock Market has shown reconsideration of Securities and Exchange Law. Since the 1998 Taipei Conference, ILA have studied upon it and presented 6th Interim Report during the 2000 London Conference. This paper summarizes a part of the 6th Interim Report. The Internet has created a medium to which traditional principles of jurisdiction may not have full relevance. To understand the jurisdictional issues posed by this new medium, we should first review the traditional principles of jurisdiction under international, U. S. law and Other Countries law. In previous reports, the general principles of jurisdiction in international law have been described. These principles are, however, difficult to apply in the context of Internet and other forms of computerized securities trading. Regulators all over the world are trying to address and solve jurisdictional issues raised by the Internet. The traditional rules of jurisdiction in international law, grounded as they are on a geography-based approach, may be in the process of being undermined by the Internet and other global networks allowing for remote access to information and to markets.

• 한국중재학회지:중재연구
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• 제31권1호
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• pp.23-54
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• 2021

While maritime arbitration industry has not been prevalent in Korea, Korea ranked fifth in terms of export volume and its shipbuilding industry ranked top globally in shipbuilding order volume in 2020. The discrepancy between the maritime industry's productivity and relative lack of maritime arbitration has had a negative impact on Korea's economic development. To address these problems, this paper i) reviews preceding research, ii) examines the Korean maritime arbitration system's status and analyzes the KCAB's maritime arbitration statistics from 2005-2020, iii) examines major foreign maritime arbitration institutions' status and strategies including LMAA, SMA, SCMA, and HKMAG, and lastly iv) suggests practical ways to promote maritime arbitration in Korea. The Suggestions for promoting maritime arbitration are 1) to prepare and promote various maritime standardized forms for the Korean shipping industry, 2) to insert an arbitration clause in medium and large-size Korean shipping firms' B/L clause, 3) to expand professional maritime manpower training and other infrastructure, and 4) to enhance the predictability of the result of arbitration through maritime arbitral awards or by examining the feasibility of the appeal system against the arbitral award only on a point of law in the future. In conclusion, the success or failure of promoting maritime arbitration in Korea depends on the will, passion, cooperation and practice of the most important key players in maritime arbitration, such as the Asia Pacific Maritime Arbitration Center (APMAC), the Korean Commercial Arbitration Board (KCAB) and the Seoul Maritime Arbitrators Association (SMAA).

• 한국중재학회지:중재연구
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• 제28권4호
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• pp.153-172
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• 2018

In solving international commercial disputes, arbitration has a unique advantage. Therefore, when most parties sign a charter party, they contain arbitration clauses. Whether the arbitration clause in the charter party can be effectively incorporated into the bill of lading and bind to the third party-bill holder becomes an important issue. Based on the problem above, this paper compares the arbitration system between Korea and China, and discusses the composition of the Chinese Maritime Court and the Chinese court's adjudication of arbitration for foreign countries, which are recognized and enforced in China. What is most important in this study is observing the Chinese case from the beginning of 2000 to the present in order to rule whether the Chinese court can effectively incorporate the arbitration clause in the charter party into the bill of lading, as well as whether it constitutes an effective binding force for third parties and changes in standard of recognition. Finally, through comparative analysis, the study concludes that in China, the arbitration clause in the charter party can be effectively incorporated into the bill of lading, and that the conditions for the third parties can be effectively restrained. There must be several points to be noted when recording the bill of lading. This would then help reduce the legal risks and promote the sustainable development of international transactions.

• 무역학회지
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• 제42권2호
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• pp.205-225
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• 2017

본 연구는 신용장거래에서 불일치서류에 대한 은행의 지급거절통지의 절차를 한·중 판례를 중심으로 고찰한다. 한·중 무역거래 비중이 높은 상황에서 한국 기업과 신용장을 개설하는 우리나라 은행들이 서류심사 결과로서 지급거절을 통지함에 있어 주의해야 하는 사항들과 신용장 관련 분쟁을 해결하기 위한 방안에 대한 제언을 목적으로 한다. 본 연구에서 고찰한 판례는 중국 매도인이 개설은행을 상대로 중국법원에 소를 제기한 것으로, 개설은행의 지급거절통지가 UCP 600 제16조 (c)항 (ii) (iii)의 내용적인 요건을 충족하지 못한다고 판시한 중국법원의 판결이다. 본 판결을 볼 때, 우리나라 기업들과 신용장 개설은행들은 첫째, UCP 600 제16조 (c)항의 규정에 근거하여 하자에 대한 통지의 내용을 자세하게 기재해야 한다. 둘째, 신용장 계약에서도 무역계약 마찬가지로 준거법에 대한 합의를 명확히 하는 것이 필요하다. 셋째, 한·중거래에서 중국법원의 편파적인 판결과 더불어 외국법원의 판결이 중국에서 집행이 어려운 점을 감안해서 분쟁해결 방식으로 중재를 활용하는 것이다. 신용장 개설 시 중재조항을 삽입하여 법적인 효력을 갖도록 하고, 국제신용장중재센터나 DOCDEX 시스템을 활용하는 것을 권고한다.

• 한국중재학회지:중재연구
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• 제12권2호
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• pp.303-336
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• 2003

Incorporation of an arbitration clause by reference to other documents occurs in many international business transactions. The reference is either to another document that contains arbitration clause or to trading rules which contain the arbitration clause, without the main contract mentioning that arbitration has been agreed upon. In fact, incorporation by reference in to a contract of an arbitration clause set forth in another agreement is deemed valid in any number of circumstances, even when the parties to the two contractual instruments are not the same. Difficulties arise when, instead of an express arbitration provision, a contract contains a clause which refers to the trading rules of a certain trade association, so-called external arbitration clause. The U.S. courts which will presume that the parties intended to arbitrate under a particular set of rules when they expressly mentioned arbitration in their agreement, have sometimes refused to enforce contract clauses that do no more than refer to particular trading rules, even if these rules contain provisions binding the parties to arbitrate their disputes. The courts in such cases tend to be careful in determinig whether intent to arbitrate is present. In maritime contracts, the arbitration clause in a charter party is often referred to in the bill of lading. Such reference usually is held binding upon the parties to the contract of carriage, their knowledge of such practice being presumed. A nonsignatory may compell arbitration against a party to an arbitration agreement when that party has entered into a separate contractual relationship with the nonsignatory which incorporates the existing arbitration clause. If a party's arbitration clause is expressly incorporated into a bill of lading, nonsignatories … who are linked to that bill … may be bound to the arbitration agreement of others. An arbitration clause in a charterparty will be incorporated into a bill of lading if either - (a) there are specific words of incorporation in the bill, and the arbitration clause is so worded as to make sense in the context of the bill, and the clause dose not conflict with the express terms of the bill; or (b) there are general words of incorporation in the bill, and the arbitration clause or some other provision in the charter makes it clear that the clause is to govern disputes under the bill as well as under the charter. In all other cases, the arbitration clause is not incorporated into the bill.